Older Uniform Acts
REVIEW AND APPEALS
90. An appeal lies from the regulatory offences court to the (County or District Court or equivalent lowest trial court of federally appointed judges in the enacting jurisdiction).
91. The filing of a notice of appeal does not stay the conviction unless a judge of the appeal court so orders.
92.-(1) Where an appellant is in custody pending the hearing of the appeal and the hearing of the appeal has not commenced within thirty days from the day on which notice of the appeal was given, the person having custody of the appellant shall apply to a judge of the appeal court to fix a date for the hearing of the appeal.
(2) Upon receiving an application under subsection (1), the judge shall, after giving the prosecutor a reasonable opportunity to be heard, fix a date for the hearing of the appeal and give such directions as the judge thinks appropriate for expediting the hearing of the appeal.
Payment of Fine not Waiver
93. The payment of a fine or compliance with an order imposed upon conviction is not a waiver of the right to appeal.
Transmittal of Material
94. Where a notice of appeal has been filed, the clerk of the appeal court shall notify the clerk of the regulatory offences court appealed from of the appeal and, upon receipt of the notification, the clerk of the regulatory offences court shall transmit the order appealed from and transmit or transfer custody of all other material in the clerks possession or control relevant to the proceedings to the clerk of the appeal court to be kept with the records of the appeal court.
Right of Appeal
95.-(1) A defendant, prosecutor or the Attorney General by way of intervention may appeal from a conviction, dismissal or sentence made by a regulatory offences court or from a finding as to ability, because of mental disorder, to conduct a defence.
(2) The appeal shall be in accordance with the rules of the appeal court.
Powers of Court
96.-(1) The appeal court may, where it considers it to be in the interests of justice,
(a) order the production of any writing, exhibit or other thing relevant to the appeal;
(b) order any witness who would have been a compellable witness at the trial, whether or not called at the trial,
(i) to attend and be examined before the court, or
(ii) to be examined in the manner provided by the rules before a judge of the court, or before any officer of the court or other person appointed by the court for the purpose;
(c) admit, as evidence, an examination that is taken under subclause (b)(ii);
(d) receive the evidence, if tendered, of any witness;
(e) order that any question arising on the appeal that,
(i) involves prolonged examination of writings or accounts, or scientific investigation, and
(ii) cannot in the opinion of the court conveniently be inquired into before the court,
be referred for inquiry and report, in the manner provided by the rules, to a special commissioner appointed by the court; and
(f) act upon the report of a commissioner who is appointed under clause (e) in so far as the court thinks fit to do so.
(2) In proceedings under this section, the parties or their counsel are entitled to examine or cross-examine witnesses and, in an inquiry under clause (1)(e), are entitled to be present during the inquiry and to adduce evidence and to be heard.
97.-(1) An appellant or respondent may appear and act personally or by counsel.
(2) An appellant or respondent who is in custody as a result of the decision appealed from is entitled to be present at the hearing of the appeal.
(3) The power of the court to impose sentence may be exercised notwithstanding that the appellant or respondent is not present.
98. An appellant or respondent may present his or her case on appeal and argument in writing instead of orally, and the court shall consider any case or argument so presented.
Powers on Appeal Against Conviction
99.-(1) On the hearing of an appeal against a conviction or against a finding as to ability, because of mental disorder, to conduct a defence, the court by order,
(a) may allow the appeal where it is of the opinion that,
(i) the finding 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; or
(b) may dismiss the appeal where,
(i) the court is of the opinion that the appellant, although not properly convicted on a count or part of a certificate was properly convicted on another count or part of the certificate,
(ii) the appeal is not decided in favour of the appellant on any ground mentioned in clause (a), or
(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subclause (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.
(2) Where the court allows an appeal under clause (1) (a), it shall,
(a) where the appeal is from a conviction, direct a finding of acquittal to be entered or order a new trial; or
(b) where the appeal is from a finding that the defendant is unable, because of mental disorder, to conduct a defence, order a new trial.
(3) Where the court dismisses an appeal under clause (1) (b), it may substitute the decision that in its opinion should have been made and affirm the sentence passed by the trial court or impose a sentence that is warranted in law.
Powers on Appeal Against Acquittal
100. Where an appeal is from an acquittal, the court may by order, (a) dismiss the appeal; or
(b) allow the appeal, set aside the finding and, (i) order a new trial, or
(ii) enter a finding of guilt with respect to the offence of which, in its opinion, the person who has been accused of the offence should have been found guilty, and pass a sentence that is warranted in law.
Appeal Against Sentence
101.-(1) Where an appeal is taken against sentence, the court shall consider the fitness of the sentence appealed from and may, upon such evidence, if any, as it thinks fit to require or receive, by order,
(a) dismiss the appeal; or
(b) vary the sentence within the limits prescribed by law for the offence of which the defendant was convicted, and, in making any order under clause (b), the court may take into account any time spent in custody by the defendant as a result of offence.
(2) A judgment of a court that varies a sentence has the same force and effect as if it were a sentence passed by the trial court.
One Sentence on More than One Count
102. Where one sentence is passed upon a finding of guilt on two or more counts, the sentence is good if any of the counts would have justified the sentence.
Defect in Certificate or Process
103.-(1) Judgment shall not be given in favour of an appellant based on an alleged defect in the substance or form of a certificate or process or any variance between the certificate or process and the evidence adduced at trial unless it is shown that objection was taken at the trial and that, in the case of a variance, an adjournment of the trial was refused notwithstanding that the variance had misled the appellant.
(2) Where an appeal is based on a defect in a conviction or an order, judgment shall not be given in favour of the appellant, but the court shall make an order curing the defect.
104. A court that exercises any of the powers in sections 96 to 103 may make any order in addition that justice requires.
105.(1) Where a court orders a new trial, it shall be held in a regulatory offences court presided over by a judge other than the judge who tried the defendant in the first instance unless the appeal court directs that the new trial be held before the judge who tried the defendant in the first instance.
(2) Where a court orders a new trial, it may make such order for the release or detention of the appellant pending the trial as may be made by a judge under subsection 123(2) (order for conditional release of person in custody) and the order may be enforced in the same manner as if it had been made by a judge under that subsection.
Trial de Novo
106.-(1) Where, because of the condition of the record of the trial in the trial court or for any other reason, the court, upon application of the appellant or respondent, is of the opinion that the interests of justice would be better served by hearing and determining the appeal by holding a new trial in the Appeal Court, the court may order that the appeal shall be heard by way of a new trial in the court in accordance with the rules, and for this purpose this Act applies with necessary modifications in the same manner as to a proceeding in a regulatory offences court.
(2) The court may, for the purpose of hearing and determining an appeal under subsection (1), permit the evidence of any witness taken before the trial court to be read if that evidence has been authenticated and if,
(a) the appellant and respondent consent;
(b) the court is satisfied that the attendance of the witness cannot reasonably be obtained; or
(c) by reason of the formal nature of the evidence or otherwise the court is satisfied that the opposite party will not be prejudiced, and any evidence that is read under the authority of this subsection has the same force and effect as if the witness had given the evidence before the court.
Failure to Comply or Abandonment
107. The court may order that the appeal be dismissed, upon proof that notice of an appeal has been given and that,
(a) the appellant has failed to comply with any order made under section 92 (conditions for release from custody) or with the conditions of any recognizance entered into under that section; or
(b) the appeal has not been proceeded with or has been abandoned.
108.-(1) Where an appeal is heard and determined or is abandoned or is dismissed for want of prosecution, the court may make any order with respect to costs that it considers just and reasonable.
(2) Where the court orders the appellant or respondent to pay costs, the order shall direct that the costs be paid to the clerk of the trial court, to be paid by him to the person entitled to them, and shall fix the period within which the costs shall be paid.
(3) Costs ordered to be paid under this section by a person other than a prosecutor acting on behalf of the Crown shall be deemed to be a fine for the purpose of enforcing its payment.
Implementation of Order on Appeal
109. An order or judgment of the appeal court shall be implemented or enforced by the trial court and the clerk of the appeal court shall send to the clerk of the trial court the order and all writings relating to the order.
Appeal to Court of Appeal
110.-(1) A defendant or the prosecutor or the Attorney General by way of intervention may appeal from the judgment of the appeal court to the Court of Appeal, with leave of a justice of appeal on special grounds, upon any question of law alone or as to sentence in accordance with the rules of the Court.
(2) Leave to appeal shall not be granted under subsection (1) unless the justice of appeal considers that in the particular circumstances of the case it is essential in the public interest or for the due administration of justice that leave be granted.
(3) No appeal or review lies from a decision on a motion for leave to appeal under subsection (1).
Custody Pending Appeal
111. A defendant who appeals shall, if in custody, remain in custody, but a judge may order the defendants release upon any of the conditions set out in subsection 122(2) (order for conditional release of person in custody).
Review in Minor Cases
112.-(1) Where a defendant is convicted of an offence for which the maximum penalty prescribed is a fine of $5,000 or less and no imprisonment, the defendant may elect to appeal by way of a review under this section.
(2) The review shall be conducted in the (provincial or territorial summary conviction court) as an informal review for the purpose of ensuring that the defendant has had due process and the evidence was duly considered.
(3) Upon a review, the court shall give the parties an opportunity to be heard and may,
(a) make such inquiries as are necessary to ensure that the issues are fully and effectively defined;
(b) receive any evidence that the defendant failed to present at the original hearing, notwithstanding that it was available;
(c) hear or rehear the recorded evidence or any part of it and may require any party to provide a transcript of the evidence or any part of it or to produce any further exhibit;
(d) receive the evidence of any witness whether or not the witness gave evidence at the trial;
(e) require the judge presiding at the trial to report in writing on any matter respecting the procedure and due process as is specified in the request;
(f) require the attendance of the regulatory offences officer who issued the certificate or the clerk of the trial court or any other official whose evidence is relevant to the issues raised by the defendant; and
(g) receive and act upon statements of agreed facts or admissions.
(4) Upon a review, the court may affirm, reverse or vary the decision appealed from or where, in the opinion of the court, it is necessary to do so to satisfy the ends of justice, direct a new trial.
(5) Where the court directs a new trial, it shall be held in the regulatory offences court presided over by a judge other than the judge who tried the defendant in the first instance, but the review court may, with the consent of the parties to the review, direct that the new trial be held before the judge who tried the defendant in the first instance.
(6) A decision on a review under this section is final.
In the great number of minor offences such as parking, illegal turns, stop signs, speeding and their equivalent in other activities such as jay-walking, smoking and many other similar offences, there is no legal issue that the defendants are interested in. It is much like being billed by a utility. The main questions on which the defendant seeks reassurance are of fact and amount. The principal function of the court is to give the defendant access to someone to ensure that the defendants version of the facts are taken into consideration.
Unfortunately, the crowded courts and stylized procedure commonly leaves a defendant feeling that his or her story was never gotten across. After the gavel falls and the defendant seeks to continue, the defendant is told "You can appeal if Im wrong". It is not access to justice in these cases to offer only an expensive formal appeal with a full dress hearing through lawyers on legal points and, of course, no appeal will be taken.
The purpose of section 112 is to review due process and correct any oversight or deficiency in the hearing. Any serious questions of law should go to the regular appeal procedure. The review is an option but, if taken, excludes an appeal.
113.-(1) Upon an application by way of originating notice, the (name the superior trial court of the enacting jurisdiction) may by order grant any relief in respect of matters arising under this Act that the applicant would be entitled to in proceedings by way of an application for an order in the nature of mandamus, prohibition or certiorari.
(2) Notice of an application under this section shall be served on,
(a) the person whose act or omission gives rise to the application;
(b) any person who is a party to a proceeding that gives rise to the application; and
(c) the Attorney General.
(3) An appeal lies to the Court of Appeal from an order made under this section.
Application for Certiorari
114.-(1) A notice under section 113 in respect of an application for relief in the nature of certiorari shall be given at least seven days and not more than ten days before the date fixed for the hearing of the application and the notice shall be served within thirty days after the occurrence of the act sought to be quashed.
(2) Where a notice referred to in subsection (1) is served on the person making the decision, order or warrant or holding the proceeding giving rise to the application, such person shall forthwith file in the (Court) for use on the application, all material concerning the subject-matter of the application.
(3) No application shall be made to quash a conviction, order or ruling from which an appeal is provided by this Act, whether subject to leave or otherwise.
(4) On an application for relief in the nature of certiorari, the (Court) shall not grant relief unless the court finds that a substantial wrong or miscarriage of justice has occurred, and the court may amend or validate any decision already made, with effect from such time and on such terms as the court considers proper.
(5) Where an application is made to quash a decision, order, warrant or proceeding made or held by a judge on the ground that the judge exceeded his or her jurisdiction, the (Court) may, in quashing the decision, order, warrant or proceeding, order that no civil proceeding shall be taken against the judge or against any officer who acted under the decision, order or warrant or in the proceeding or under any warrant issued to enforce it.
Application for Habeas Corpus
115.-(1) Upon an application by way of originating notice, the (Court) may by order grant any relief in respect of a matter arising under this Act that the applicant would be entitled to in proceedings by way of an application for an order in the nature of habeas corpus.
(2) Notice of an application under subsection (1) for relief in the nature of habeas corpus shall be served upon the person having custody of the person in respect of whom the application is made and upon the Attorney General and on the hearing of the application the presence before the (Court) of the person in respect of whom the application was made may be dispensed with by consent, in which event the (Court) may proceed to dispose of the matter forthwith as the justice of the case requires.
Costs on Judicial Review
116. The (Court) to which an application or appeal is made under section 113 or 115 may make an order with respect to costs that it considers just and reasonable.