Summary Conviction Appeals:  Leave to Appeal to the Court of Appeal

Summary conviction proceedings are governed by Part XXVII of the Criminal Code.

In summary conviction appeal proceedings, the Superior Court of Justice is the primary appellate court, and has broad appellate jurisdiction.

Access to the court of appeal from these decisions of the Superior Court is restricted to questions of law alone and only if leave to appeal is granted (section 839, Criminal Code).

When will it be appropriate for the court of appeal to grant leave?

Leave to appeal pursuant to s. 839 should be granted sparingly. There is no single litmus test that can identify all cases in which leave should be granted. There are, however, two key variables:

1.   The significance of the legal issues raised to the general administration of criminal justice, and

2.   The merits of the proposed grounds of appeal.

On the one hand, if the issues have significance to the administration of justice beyond the particular case, then leave may be granted even if the merits are not particularly strong, though the grounds must at least be arguable. On the other hand, where the merits appear very strong, leave to Appeal may be granted even if the issues have no general importance, especially if the convictions in issue are serious and the applicant is facing a significant deprivation of his or her Liberty.

R. v R.(R.), 2008 ONCA 497, 90 O.R. [3d] 564. Doherty J.A, at para 37.

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