Summary Conviction Appeals (differences between the first and second level of appeal)

Canadian criminal law policy balances the benefits of appellate review and the negative effects inherent in that process by distinguishing between first and second levels of appeal in criminal proceedings. Access to the former is virtually carte blanche. Access to the latter is narrowly restricted.

The Criminal Code draws a distinction between appeals in indictable proceedings, which are governed by Part XXI, and applications for leave to appeal and, if leave is granted, appeals in summary conviction proceedings, which are governed by Part XXVII. In indictable matters.

The Court of Appeal provides the first level of appellate review, and that court's jurisdiction is very broad. In summary conviction appeal proceedings, the Superior Court of Justice is the primary appellate court, and it has the same broad jurisdiction.

Summary Conviction appeals—first level of appeal

In summary conviction proceedings, at the first level of appeal in the Superior Court, the appellant may raise any ground of appeal as of right: Criminal Code, s. 813.  

Appeals are on the trial record, but the Superior Court judge has the same broad powers that the Court of Appeal has in indictable matters, including the power to receive fresh evidence in appropriate circumstances: Criminal Code, s. 822.  

Summary Conviction appeals—second level of appeal

The second level of appeal in summary conviction proceedings—to the Court of Appeal—is found in s. 839(1) of the Criminal Code. The appeal is not a second appeal from the trial decision; rather, it is an appeal from the decision of the Superior Court judge.

Access to the Court of Appeal from the decisions of the Superior Court is restricted to questions of law alone and only if leave to appeal is granted.

The applicant must also show that the case either

1.   raises a question of law that has significance to the administration of justice beyond the four corners of the case, or

2.   that there appears to be clear error that is relevant only to the specific case.

·         The interests of justice require that a person who stands convicted of a serious criminal offence and has perhaps lost his or her liberty should have access to this court to review the merits of that conviction if he or she can show a strong likelihood that the conviction was sustained at the first level of appeal because of an error in law


See R. v. R.R., 2008 ONCA 497, 234 C.C.C. (3d) 463; see also R. v. Lin, 2017 ONCA 124.




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