Criminal Code (R.S.C., 1985, c. C-46)

Marginal note:Powers of court of appeal

• 683 (1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice,

  • (a) order the production of any writing, exhibit or other thing connected with the proceedings;

  • (b) order any witness who would have been a compellable witness at the trial, whether or not he was called at the trial,

    • (i) to attend and be examined before the court of appeal, or

    • (ii) to be examined in the manner provided by rules of court before a judge of the court of appeal, or before any officer of the court of appeal or justice of the peace or other person appointed by the court of appeal for the purpose;

  • (c) admit, as evidence, an examination that is taken under subparagraph (b)(ii);

  • (d) receive the evidence, if tendered, of any witness, including the appellant, who is a competent but not compellable witness;

  • (e) order that any question arising on the appeal that

    • (i) involves prolonged examination of writings or accounts, or scientific or local investigation, and

    • (ii) cannot in the opinion of the court of appeal conveniently be inquired into before the court of appeal,

    be referred for inquiry and report, in the manner provided by rules of court, to a special commissioner appointed by the court of appeal;

  • (f) act on the report of a commissioner who is appointed under paragraph (e) in so far as the court of appeal thinks fit to do so; and

  • (g) amend the indictment, unless it is of the opinion that the accused has been misled or prejudiced in his defence or appeal.

• Marginal note:Parties entitled to adduce evidence and be heard

  (2) In proceedings under this section, the parties or their counsel are entitled to examine or cross-examine witnesses and, in an inquiry under paragraph (1)(e), are entitled to be present during the inquiry, to adduce evidence and to be heard.

• Marginal note:Virtual presence of parties

  (2.1) In proceedings under this section, the court of appeal may order that the presence of a party may be by any technological means satisfactory to the court that permits the court and the other party or parties to communicate simultaneously.

• Marginal note:Virtual presence of witnesses

  (2.2) Sections 714.1 to 714.8 apply, with any modifications that the circumstances require, to examinations and cross-examinations of witnesses under this section.

• Marginal note:Other powers

  (3) A court of appeal may exercise, in relation to proceedings in the court, any powers not mentioned in subsection (1) that may be exercised by the court on appeals in civil matters, and may issue any process that is necessary to enforce the orders or sentences of the court, but no costs shall be allowed to the appellant or respondent on the hearing and determination of an appeal or on any proceedings preliminary or incidental thereto.

• Marginal note:Execution of process

  (4) Any process that is issued by the court of appeal under this section may be executed anywhere in Canada.

• Marginal note:Power to order suspension

  (5) If an appeal or an application for leave to appeal has been filed in the court of appeal, that court, or a judge of that court, may, when the court, or the judge, considers it to be in the interests of justice, order that any of the following be suspended until the appeal has been determined:

  • (a) an obligation to pay a fine;

  • (b) an order of forfeiture or disposition of forfeited property;

  • (c) an order to make restitution under section 738 or 739;

  • (d) an obligation to pay a victim surcharge under section 737;

  • (e) a probation order under section 731; and

  • (f) a conditional sentence order under section 742.1.

• Marginal note:Undertaking or recognizance

  (5.1) Before making an order under paragraph (5)(e) or (f), the court of appeal, or a judge of that court, may order the offender to enter into an undertaking or recognizance.

• Marginal note:Revocation of suspension order

  (6) The court of appeal may revoke any order it makes under subsection (5) where it considers the revocation to be in the interests of justice.

• Marginal note:Undertaking or recognizance to be taken into account

  (7) If the offender has been ordered to enter into an undertaking or recognizance under subsection (5.1), the court of appeal shall, in determining whether to vary the sentence of the offender, take into account the conditions of that undertaking or recognizance and the period during which they were imposed.

Marginal note:Legal assistance for appellant

• 684 (1) A court of appeal or a judge of that court may, at any time, assign counsel to act on behalf of an accused who is a party to an appeal or to proceedings preliminary or incidental to an appeal where, in the opinion of the court or judge, it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance.

• Marginal note:Counsel fees and disbursements

  (2) Where counsel is assigned pursuant to subsection (1) and legal aid is not granted to the accused pursuant to a provincial legal aid program, the fees and disbursements of counsel shall be paid by the Attorney General who is the appellant or respondent, as the case may be, in the appeal.

• Marginal note:Taxation of fees and disbursements

  (3) Where subsection (2) applies and counsel and the Attorney General cannot agree on fees or disbursements of counsel, the Attorney General or the counsel may apply to the registrar of the court of appeal and the registrar may tax the disputed fees and disbursements.

Marginal note:Summary determination of frivolous appeals

• 685 (1) Where it appears to the registrar that a notice of appeal, which purports to be on a ground of appeal that involves a question of law alone, does not show a substantial ground of appeal, the registrar may refer the appeal to the court of appeal for summary determination, and, where an appeal is referred under this section, the court of appeal may, if it considers that the appeal is frivolous or vexatious and can be determined without being adjourned for a full hearing, dismiss the appeal summarily, without calling on any person to attend the hearing or to appear for the respondent on the hearing.

• Marginal note:Summary determination of appeals filed in error

  (2) If it appears to the registrar that a notice of appeal should have been filed with another court, the registrar may refer the appeal to a judge of the court of appeal for summary determination, and the judge may dismiss the appeal summarily without calling on any person to attend the hearing or to appear for the respondent on the hearing.

Powers of the Court of Appeal

Marginal note:Powers

• 686 (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

  • (a) may allow the appeal where it is of the opinion that

    • (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

    • (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

    • (iii) on any ground there was a miscarriage of justice;

  • (b) may dismiss the appeal where

    • (i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment,

    • (ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a),

    • (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, or

    • (iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby;

  • (c) may refuse to allow the appeal where it is of the opinion that the trial court arrived at a wrong conclusion respecting the effect of a special verdict, may order the conclusion to be recorded that appears to the court to be required by the verdict and may pass a sentence that is warranted in law in substitution for the sentence passed by the trial court; or

  • (d) may set aside a conviction and find the appellant unfit to stand trial or not criminally responsible on account of mental disorder and may exercise any of the powers of the trial court conferred by or referred to in section 672.45 in any manner deemed appropriate to the court of appeal in the circumstances.

  • (e) [Repealed, 1991, c. 43, s. 9]

• Marginal note:Order to be made

  (2) Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and

  • (a) direct a judgment or verdict of acquittal to be entered; or

  • (b) order a new trial.

• Marginal note:Substituting verdict

  (3) Where a court of appeal dismisses an appeal under subparagraph (1)(b)(i), it may substitute the verdict that in its opinion should have been found and

  • (a) affirm the sentence passed by the trial court; or

  • (b) impose a sentence that is warranted in law or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law.

• Marginal note:Appeal from acquittal

  (4) If an appeal is from an acquittal or verdict that the appellant or respondent was unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal may

  • (a) dismiss the appeal; or

  • (b) allow the appeal, set aside the verdict and

    • (i) order a new trial, or

    • (ii) except where the verdict is that of a court composed of a judge and jury, enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass a sentence that is warranted in law, or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law.

• Marginal note:New trial under Part XIX

  (5) Subject to subsection (5.01), if an appeal is taken in respect of proceedings under Part XIX and the court of appeal orders a new trial under this Part, the following provisions apply:

  • (a) if the accused, in his notice of appeal or notice of application for leave to appeal, requested that the new trial, if ordered, should be held before a court composed of a judge and jury, the new trial shall be held accordingly;

  • (b) if the accused, in his notice of appeal or notice of application for leave to appeal, did not request that the new trial, if ordered, should be held before a court composed of a judge and jury, the new trial shall, without further election by the accused, be held before a judge or provincial court judge, as the case may be, acting under Part XIX, other than a judge or provincial court judge who tried the accused in the first instance, unless the court of appeal directs that the new trial be held before the judge or provincial court judge who tried the accused in the first instance;

  • (c) if the court of appeal orders that the new trial shall be held before a court composed of a judge and jury, the new trial shall be commenced by an indictment in writing setting forth the offence in respect of which the new trial was ordered; and

  • (d) notwithstanding paragraph (a), if the conviction against which the accused appealed was for an offence mentioned in section 553 and was made by a provincial court judge, the new trial shall be held before a provincial court judge acting under Part XIX, other than the provincial court judge who tried the accused in the first instance, unless the court of appeal directs that the new trial be held before the provincial court judge who tried the accused in the first instance.

• Marginal note:New trial under Part XIX — Nunavut

  (5.01) If an appeal is taken in respect of proceedings under Part XIX and the Court of Appeal of Nunavut orders a new trial under Part XXI, the following provisions apply:

  • (a) if the accused, in the notice of appeal or notice of application for leave to appeal, requested that the new trial, if ordered, should be held before a court composed of a judge and jury, the new trial shall be held accordingly;

  • (b) if the accused, in the notice of appeal or notice of application for leave to appeal, did not request that the new trial, if ordered, should be held before a court composed of a judge and jury, the new trial shall, without further election by the accused, and without a further preliminary inquiry, be held before a judge, acting under Part XIX, other than a judge who tried the accused in the first instance, unless the Court of Appeal of Nunavut directs that the new trial be held before the judge who tried the accused in the first instance;

  • (c) if the Court of Appeal of Nunavut orders that the new trial shall be held before a court composed of a judge and jury, the new trial shall be commenced by an indictment in writing setting forth the offence in respect of which the new trial was ordered; and

  • (d) despite paragraph (a), if the conviction against which the accused appealed was for an indictable offence mentioned in section 553, the new trial shall be held before a judge acting under Part XIX, other than the judge who tried the accused in the first instance, unless the Court of Appeal of Nunavut directs that the new trial be held before the judge who tried the accused in the first instance.

• Marginal note:Election if new trial a jury trial

  (5.1) Subject to subsection (5.2), if a new trial ordered by the court of appeal is to be held before a court composed of a judge and jury,

  • (a) the accused may, with the consent of the prosecutor, elect to have the trial heard before a judge without a jury or a provincial court judge;

  • (b) the election shall be deemed to be a re-election within the meaning of subsection 561(5); and

  • (c) subsection 561(5) applies, with such modifications as the circumstances require, to the election.

• Marginal note:Election if new trial a jury trial — Nunavut

  (5.2) If a new trial ordered by the Court of Appeal of Nunavut is to be held before a court composed of a judge and jury, the accused may, with the consent of the prosecutor, elect to have the trial heard before a judge without a jury. The election shall be deemed to be a re-election within the meaning of subsection 561.1(1), and subsection 561.1(6) applies, with any modifications that the circumstances require, to the election.

• Marginal note:Where appeal allowed against verdict of unfit to stand trial

  (6) Where a court of appeal allows an appeal against a verdict that the accused is unfit to stand trial, it shall, subject to subsection (7), order a new trial.

• Marginal note:Appeal court may set aside verdict of unfit to stand trial

  (7) Where the verdict that the accused is unfit to stand trial was returned after the close of the case for the prosecution, the court of appeal may, notwithstanding that the verdict is proper, if it is of the opinion that the accused should have been acquitted at the close of the case for the prosecution, allow the appeal, set aside the verdict and direct a judgment or verdict of acquittal to be entered.

• Marginal note:Additional powers

  (8) Where a court of appeal exercises any of the powers conferred by subsection (2), (4), (6) or (7), it may make any order, in addition, that justice requires.