This question arises on questions of bail pending appeal, security for costs and other procedural matters.
Put simply, a frivolous appeal is one with so little chance of success that no one could possibly believe that it could succeed. The standard is very low.
The recent Newfoundland Court of Appeal decision in R. v. Newman, 2008 NLCA 45 (CanLII) is helpful here.
The Court says:
[9] In R. v. Genge, [1992] N.J. No. 238, Mahoney, J.A. considered an application for judicial release where the applicant had set forth nineteen grounds alleging errors on the part of the trial judge but gave no detailed information to support the allegations of error. In dismissing the application, Mahoney J.A. stated:
There is a statutory obligation upon the applicant for release pending appeal to satisfy me that his appeal is not frivolous (without merit) and that there is at least some arguable ground and it is not sufficient for the appellant to simply recite the grounds of appeal contained in the Notice of Appeal filed by him. It is incumbent on him to place before me some information in depth as to the circumstances giving rise to the grounds of appeal relied on. He must show me at this stage that he has at least an arguable case.
He has, of course, the right to proceed with his appeal and I have no intention to interfere with that right. Indeed, I have no jurisdiction as a single judge to make any decision on the merits of his appeal.
There was no detailed information put before me as to the basis for the alleged errors on the part of the trial judge upon which it might now be said that the attack on the conviction might succeed. The appellant merely stated that it will all be explained fully at the appeal hearing.
Goodman, J.A. placed a similar meaning on "not frivolous" in R. v. Baltovich reflex, (1993), 10 O.R. (3d) 737 (C.A.), where he stated, at p. 738:
… it is apparent that the appeal is not frivolous. The grounds relied on contain matters of substance and are clearly arguable.
This was cited with approval in R. v. Farinacci 1993 CanLII 3385 (ON C.A.), (1993), 86 C.C.C. (3d) 32 (Ont. C.A.).
[10] Implicit in the concept of "an arguable case" or "arguable ground" or an appeal having "merit" is that the appeal has some reasonable prospect of success, or, put negatively, that it is not an appeal with "so little chance of success that no one could possibly believe that it could succeed". See R. v. McPherson 1999 BCCA 638 (CanLII), (1999), 140 C.C.C. (3d) 316 (B.C.C.A.- Chrs.), at para. 5, and R. v. Mapara 2004 BCCA 310 (CanLII), (2004), 186 C.C.C. (3d) 273 (B.C.C.A. - Chrs.)
[11] A reasonable prospect of success does not equate to a probability of success. See R. v. Allen 2001 NFCA 44 (CanLII), (2001), 158 C.C.C. (3d) 225 (N.L.C.A.) and R. v. Parsons reflex, (1994), 118 Nfld. & P.E.I.R. 353 (N.L.C.A.). In Allen, Wells C.J.N.L., in determining whether the applicant had established an arguable case, stated, at para. 53:
As noted above, deciding this issue requires that I come to a conclusion as to whether or not the applicant has established, to my satisfaction, that there is an arguable case on which the Court of Appeal could conclude that Mahoney J.A. was in error in refusing to grant judicial interim release to the applicant. Essentially that requires me to decide whether, on the material before me, I am of the view that the Court of Appeal could come to the conclusion that Mahoney J.A. erred, both in determining that the applicant had not satisfied him that he would surrender himself when required by law to do so, and in determining that the applicant had not satisfied him that the applicant's detention was not necessary in the public interest.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
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