Leave to Appeal from a Decision of a Summary Conviction Appeal Judge: Don't Get Stopped at the Door

In summary conviction appeal proceedings, the Superior Court of Justice is the primary appellate court. 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 (see s. 839, Criminal Code).

Such appeals are appeals from the decision of the summary conviction appeal judge and are not a second appeal from the trial decision. 

The test for obtaining leave to appeal under s. 839 of the Criminal Code is exacting.  As the Court of Appeal for Ontario held in R. v. R.R. (2008), 90 O.R. (3d) 641 (C.A.), at para. 32:

Leave to appeal may be granted where the merits of the proposed question of law are arguable, even if not strong, and the proposed question of law has significance to the administration of justice beyond the four corners of the case.  Leave to appeal may also be granted where there appears to be a clear error even if it cannot be said that the error has significance to the administration of justice beyond the specific case.

The Court of Appeal for Ontario has made it clear that it is not enough that an appeal raises a question of law.   Appeal counsel should frame their applications for leave to appeal accordingly. Counsel arguing the application of settled law to a particular case will generally get stopped at the door, so to speak. 

See for instance, R. v. Nield, 2017 ONCA 722 (leave to appeal denied);





Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca

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