D. Appeals
Summary convictions can be appealed by the prosecutor, accused, or, in rare cases, by a s.96 Judge regarding questions of law. Appeals for indictable offences go directly to the Court of Appeal, are decided by panels of 3 or 5 and decide questions of law or fact. An appeal can be founded on 3 grounds:
1. Conviction is unreasonable or cannot be supported by the evidence;
2. Conviction entails a miscarriage of justice;
3. Trial Judge made an error of law under CC686.1b.3, an appeal can be denied if now wrong or miscarriage of justice occurred.
If one of these three conditions is satisfied, either a new trial or an acquittal will be registered. Either the accused or prosecutor can appeal to the SCC.
CHARTER:
The Charter consists of a variety of substantive (s.2 and s.15) and procedural rights (s.7-14). Any criminal law that is challenged on Charter grounds must satisfy the Oakes Test in order to remain in place. Remedies for Charter violations, including the exclusion of unconstitutionally collected evidence, termination of proceedings and the release of the accused are found in s.24.
s.7
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. This includes the Crown disclosing all evidence to the accused’s counsel.
s.8
Everyone has the right to be secure against unreasonable search or seizure. Privacy.
s.9
Everyone has the right not to be arbitrarily detained or imprisoned This applies to random vehicle stops.
s.10
Everyone has the right on arrest or detention
1. To be promptly informed of the reasons therefore
2. To retain and instruct counsel without delay and be informed of that right; and
3. To have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
s.11
Any person charged with an offence has the right
1. To be informed without unreasonable delay of the specific offence
2. To be tried within a reasonable time
3. Not to be compelled to be a witness in proceedings against that person in respect to the offence
4. To be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal
5. Not to be denied reasonable bail without just cause
6. To trial by jury (except in military) where the maximum punishment for the offence is imprisonment for five years or more
7. Not to be found guilty on account of any act or omission (some qualifications)
8. If finally acquitted of the offence, not to be tried for it again
9. If the punishment for an offence changes between the time of commission and the time of sentencing – get the benefit of the lesser punishment.
s.12
Everyone has the right not to be subjected to any cruel and unusual treatment or punishment
s.13
A witness cannot have their testimony used against them in other proceedings, unless the prosecution is for perjury.
s.14
The right to an interpreter
s.24(2): Admissibility:
Under this section, any evidence that is gathered in a manner which infringes the Charter is not admissible if it would “bring the administration of justice into disrepute.” Therefore, if a Charter right is violated, s.24(2) immediately comes into play. Three considerations for whether evidence is admissible include:
1. Fairness of the trial – would the admission of evidence obtained in violation of the Charter render the trial unfair.
2. How serious was the Charter violation?
3. Administration of justice – would it be called into disrepute if the evidence in question were allowed.
Courts look at both sides: 1. Would it be unjust to admit the evidence? or 2. Would it be unjust not to admit the evidence?
Frey v. Fedoruk (1950) SCC:
Frey was a peeping tom and was caught looking at Mrs. Fedoruk changing. He was arrested without warrant. BCCA said that Frey was guilty of a criminal offence at common law, which was legal justification for the arrest without warrant. Cartwright J. states that “it is safer to hold that no one shall be convicted of a crime unless the offence with which he is charged is recognized as such in the provisions of the CC, or can be established by the authority of some reported case as offence known to the law. Such declaration should be made by Parliament and not by the Courts.
R. v. Jacob (1996) Ont. CA:
Was the appellant’s display of her breasts an indecent act under CC173.1.a? If Community Standards of Tolerance Test is to be applied, it must first be determined that the context of the conduct was sexual. Weiler J. asked whether a reasonable bystander would have viewed the act as being one of sexual gratification, either for the accused or someone else, and came to the conclusion that it was not and therefore lacked the sexual context needed to invoke CC173.1.a. Osborne J. disagreed by saying that CC173.1.a does not require a sexual context in order to establish indecency and concluded that the trial judge and summary conviction appeal court judge both erred in law in applying the test to determine whether the conduct was indecent because they failed to look at the national community.
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