Criminal Code (R.S.C., 1985, c. C-46)

Marginal note:Recognizance of prosecutor

• 817 (1) The prosecutor in proceedings before a summary conviction court by whom an appeal is taken under section 813 shall, immediately after filing the notice of appeal and proof of service of the notice in accordance with section 815, appear before a justice, and the justice shall, after giving the prosecutor and the respondent a reasonable opportunity to be heard, order that the prosecutor enter into a recognizance, with or without sureties, in the amount that the justice directs and with or without the deposit of money or other valuable security that the justice directs.

• Marginal note:Condition

  (2) The condition of a recognizance entered into under this section is that the prosecutor will appear personally or by counsel at the sittings of the appeal court at which the appeal is to be heard.

• Marginal note:Appeals by Attorney General

  (3) This section does not apply in respect of an appeal taken by the Attorney General or by counsel acting on behalf of the Attorney General.

• (4) [Repealed, 2019, c. 25, s. 324]

Marginal note:Application to appeal court for review

• 818 (1) Where a justice makes an order under section 817, either the appellant or the respondent may, before or at any time during the hearing of the appeal, apply to the appeal court for a review of the order made by the justice.

• Marginal note:Disposition of application by appeal court

  (2) On the hearing of an application under this section, the appeal court, after giving the appellant and the respondent a reasonable opportunity to be heard, shall

  • (a) dismiss the application; or

  • (b) if the person applying for the review shows cause, allow the application, vacate the order made by the justice and make the order that in the opinion of the appeal court should have been made.

• Marginal note:Effect of order

  (3) An order made under this section shall have the same force and effect as if it had been made by the justice.

Marginal note:Application to fix date for hearing of appeal

• 819 (1) Where, in the case of an appellant who has been convicted by a summary conviction court and who is in custody pending the hearing of his appeal, the hearing of his appeal has not commenced within thirty days from the day on which notice of his appeal was given in accordance with the rules referred to in section 815, the person having the custody of the appellant shall, forthwith on the expiration of those thirty days, apply to the appeal court to fix a date for the hearing of the appeal.

• Marginal note:Order fixing date

  (2) On receiving an application under subsection (1), the appeal court 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 it thinks necessary for expediting the hearing of the appeal.

Marginal note:Payment of fine not a waiver of appeal

• 820 (1) A person does not waive his right of appeal under section 813 by reason only that he pays the fine imposed on conviction, without in any way indicating an intention to appeal or reserving the right to appeal.

• Marginal note:Presumption

  (2) A conviction, order or sentence shall be deemed not to have been appealed against until the contrary is shown.

Procedure on Appeal

Marginal note:Notification and transmission of conviction, etc.

• 821 (1) Where a notice of appeal has been given in accordance with the rules referred to in section 815, the clerk of the appeal court shall notify the summary conviction court that made the conviction or order appealed from or imposed the sentence appealed against of the appeal and on receipt of the notification that summary conviction court shall transmit the conviction, order or order of dismissal and all other material in its possession in connection with the proceedings to the appeal court before the time when the appeal is to be heard, or within such further time as the appeal court may direct, and the material shall be kept by the clerk of the appeal court with the records of the appeal court.

• Marginal note:Saving

  (2) An appeal shall not be dismissed by the appeal court by reason only that a person other than the appellant failed to comply with the provisions of this Part relating to appeals.

• Marginal note:Appellant to furnish transcript of evidence

  (3) Where the evidence on a trial before a summary conviction court has been taken by a stenographer duly sworn or by a sound recording apparatus, the appellant shall, unless the appeal court otherwise orders or the rules referred to in section 815 otherwise provide, cause a transcript thereof, certified by the stenographer or in accordance with subsection 540(6), as the case may be, to be furnished to the appeal court and the respondent for use on the appeal.

Marginal note:Certain sections applicable to appeals

• 822 (1) Where an appeal is taken under section 813 in respect of any conviction, acquittal, sentence, verdict or order, sections 683 to 689, with the exception of subsections 683(3) and 686(5), apply, with such modifications as the circumstances require.

• Marginal note:New trial

  (2) Where an appeal court orders a new trial, it shall be held before a summary conviction court other than the court that tried the defendant in the first instance, unless the appeal court directs that the new trial be held before the summary conviction court that tried the accused in the first instance.

• Marginal note:Order of detention or release

  (3) Where an appeal 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 justice pursuant to section 515 and the order may be enforced in the same manner as if it had been made by a justice under that section, and the provisions of Part XVI apply with such modifications as the circumstances require to the order.

• Marginal note:Trial de novo

  (4) Despite subsections (1) to (3), if an appeal is taken under section 813 and because of the condition of the record of the trial in the summary conviction court or for any other reason, the appeal court, on application of the defendant, the informant, the Attorney General or the Attorney General’s agent, is of the opinion that the interests of justice would be better served by hearing and determining the appeal by holding a trial de novo, the appeal court may order that the appeal shall be heard by way of trial de novo in accordance with any rules that may be made under section 482 or 482.1, and for that purpose the provisions of sections 793 to 809 apply, with any modifications that the circumstances require.

• Marginal note:Former evidence

  (5) The appeal court may, for the purpose of hearing and determining an appeal under subsection (4), permit the evidence of any witness taken before the summary conviction court to be read if that evidence has been authenticated in accordance with section 540 and if

  • (a) the appellant and respondent consent,

  • (b) the appeal 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 appeal court.

• Marginal note:Appeal against sentence

  (6) Where an appeal is taken under subsection (4) against sentence, the appeal court shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against and may, on 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 paragraph (b), the appeal court may take into account any time spent in custody by the defendant as a result of the offence.

• Marginal note:General provisions re appeals

  (7) The following provisions apply in respect of appeals under subsection (4):

  • (a) where an appeal is based on an objection to an information or any process, judgment shall not be given in favour of the appellant

    • (i) for any alleged defect therein in substance or in form, or

    • (ii) for any variance between the information or process and the evidence adduced at the trial,

    unless it is shown

    • (iii) that the objection was taken at the trial, and

    • (iv) that an adjournment of the trial was refused notwithstanding that the variance referred to in subparagraph (ii) had deceived or misled the appellant; and

  • (b) 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.

823 [Repealed, 1991, c. 43, s. 9]

Marginal note:Adjournment

824 The appeal court may adjourn the hearing of an appeal from time to time as may be necessary.

Marginal note:Dismissal for failure to appear or want of prosecution

825 The appeal court may, on proof that notice of an appeal has been given and that

• (a) the appellant has failed to comply with the conditions of a release order made under section 816 or of a recognizance entered into under section 817; or

• (b) the appeal has not been proceeded with or has been abandoned,

order that the appeal be dismissed.

Marginal note:Costs

826 Where an appeal is heard and determined or is abandoned or is dismissed for want of prosecution, the appeal court may make any order with respect to costs that it considers just and reasonable.

Marginal note:To whom costs payable, and when

• 827 (1) Where the appeal court orders the appellant or respondent to pay costs, the order shall direct that the costs be paid to the clerk of the court, to be paid by him to the person entitled to them, and shall fix the period within which the costs shall be paid.

• Marginal note:Certificate of non-payment of costs

  (2) Where costs are not paid in full within the period fixed for payment and the person who has been ordered to pay them has not been bound by a recognizance to pay them, the clerk of the court shall, on application by the person entitled to the costs, or by any person on his behalf, and on payment of any fee to which the clerk of the court is entitled, issue a certificate in Form 42 certifying that the costs or a part thereof, as the case may be, have not been paid.

• Marginal note:Committal

  (3) A justice having jurisdiction in the territorial division in which a certificate has been issued under subsection (2) may, on production of the certificate, by warrant in Form 26, commit the defaulter to imprisonment for a term not exceeding one month, unless the amount of the costs and, where the justice thinks fit so to order, the costs of the committal and of conveying the defaulter to prison are sooner paid.

Marginal note:Enforcement of conviction or order by court of appeal

• 828 (1) A conviction or order made by the appeal court may be enforced

  • (a) in the same manner as if it had been made by the summary conviction court; or

  • (b) by process of the appeal court.

• Marginal note:Enforcement by justice

  (2) Where an appeal taken against a conviction or order adjudging payment of a sum of money is dismissed, the summary conviction court that made the conviction or order or a justice for the same territorial division may issue a warrant of committal as if no appeal had been taken.

• Marginal note:Duty of clerk of court

  (3) When a conviction or order that has been made by an appeal court is to be enforced by a justice, the clerk of the appeal court shall send to the justice the conviction or order and all writings relating to that conviction or order, except the notice of intention to appeal and any undertaking, release order or recognizance.

Summary Appeal on Transcript or Agreed Statement of Facts

Marginal note:Definition of appeal court

• 829 (1) Subject to subsection (2), for the purposes of sections 830 to 838, appeal court means, in any province, the superior court of criminal jurisdiction for the province.

• Marginal note:Nunavut

  (2) If the appeal is from a conviction, judgment, verdict or other final order or determination of a summary conviction court consisting of a judge of the Nunavut Court of Justice, appeal court means a judge of the Court of Appeal of Nunavut.

Marginal note:Appeals

• 830 (1) A party to proceedings to which this Part applies or the Attorney General may appeal against a conviction, judgment, verdict of acquittal or verdict of not criminally responsible on account of mental disorder or of unfit to stand trial or other final order or determination of a summary conviction court on the ground that

  • (a) it is erroneous in point of law;

  • (b) it is in excess of jurisdiction; or

  • (c) it constitutes a refusal or failure to exercise jurisdiction.

• Marginal note:Form of appeal

  (2) An appeal under this section shall be based on a transcript of the proceedings appealed from unless the appellant files with the appeal court, within fifteen days of the filing of the notice of appeal, a statement of facts agreed to in writing by the respondent.

• Marginal note:Rules for appeals

  (3) An appeal under this section shall be made within the period and in the manner directed by any applicable rules of court and where there are no such rules otherwise providing, a notice of appeal in writing shall be served on the respondent and a copy thereof, together with proof of service, shall be filed with the appeal court within thirty days after the date of the conviction, judgment or verdict of acquittal or other final order or determination that is the subject of the appeal.

• Marginal note:Rights of Attorney General of Canada

  (4) The Attorney General of Canada has the same rights of appeal in proceedings instituted at the instance of the Government of Canada and conducted by or on behalf of that Government as the Attorney General of a province has under this section.