This section of the criminal code deals with procedure for procecuting not so serious crimes. Due to the length of the section, I will have to split it into two different sections, of which this is the 2nd.
Part XXVII: Section 1 of 2
Previous
Index
Breach of recognizance
811. A person bound by a recognizance under section 810, 810.01, 810.1 or 810.2 who commits a breach of the recognizance is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
R.S., 1985, c. C-46, s. 811; 1993, c. 45, s. 11; 1994, c. 44, s. 82; 1997, c. 17, s. 10, c. 23, ss. 20, 27.
Appeal
Definition of "appeal court"
812. (1) For the purposes of sections 813 to 828, "appeal court" means
(a) in the Province of Ontario, the Superior Court of Justice sitting in the region, district or county or group of counties where the adjudication was made;
(b) in the Province of Quebec, the Superior Court;
(c) in the Provinces of Nova Scotia and British Columbia, the Supreme Court;
(d) in the Provinces of New Brunswick, Manitoba, Saskatchewan and Alberta, the Court of Queen's Bench;
(e) Repealed, 1992, c. 51, s. 43
(f) in the Province of Prince Edward Island, the Trial Division of the Supreme Court;
(g) in the Province of Newfoundland, the Trial Division of the Supreme Court;
(h) in the Yukon Territory and Northwest Territories, a judge of the Supreme Court of the territory; and
(i) in Nunavut, a judge of the Nunavut Court of Justice.
When appeal court is Court of Appeal of Nunavut
(2) A judge of the Court of Appeal of Nunavut is the appeal court for the purposes of sections 813 to 828 if the appeal is from a conviction, order, sentence or verdict of a summary conviction court consisting of a judge of the Nunavut Court of Justice.
R.S., 1985, c. C-46, s. 812; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (2nd Supp.), s. 10; 1990, c. 16, s. 7, c. 17, s. 15; 1992, c. 51, s. 43; 1998, c. 30, s. 14; 1999, c. 3, s. 55.
Appeal by defendant, informant or Attorney General
813. Except where otherwise provided by law,
(a) the defendant in proceedings under this Part may appeal to the appeal court
(i) from a conviction or order made against him,
(ii) against a sentence passed on him, or
(iii) against a verdict of unfit to stand trial or not criminally responsible on account of mental disorder; and
(b) the informant, the Attorney General or his agent in proceedings under this Part may appeal to the appeal court
(i) from an order that stays proceedings on an information or dismisses an information,
(ii) against a sentence passed on a defendant, or
(iii) against a verdict of not criminally responsible on account of mental disorder or unfit to stand trial,
and the Attorney General of Canada or his agent 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 or his agent has under this paragraph.
R.S., 1985, c. C-46, s. 813; R.S., 1985, c. 27 (1st Supp.), s. 180; 1991, c. 43, s. 9.
Manitoba and Alberta
814. (1) In the Provinces of Manitoba and Alberta, an appeal under section 813 shall be heard at the sittings of the appeal court that is held nearest to the place where the cause of the proceedings arose, but the judge of the appeal court may, on the application of one of the parties, appoint another place for the hearing of the appeal.
Saskatchewan
(2) In the Province of Saskatchewan, an appeal under section 813 shall be heard at the sittings of the appeal court at the judicial centre nearest to the place where the adjudication was made, but the judge of the appeal court may, on the application of one of the parties, appoint another place for the hearing of the appeal.
British Columbia
(3) In the Province of British Columbia, an appeal under section 813 shall be heard at the sittings of the appeal court that is held nearest to the place where the adjudication was made, but the judge of the appeal court may, on the application of one of the parties, appoint another place for the hearing of the appeal.
Territories
(4) In the Yukon Territory, the Northwest Territories and Nunavut, an appeal under section 813 shall be heard at the place where the cause of the proceedings arose or at the place nearest thereto where a court is appointed to be held.
R.S., 1985, c. C-46, s. 814; 1993, c. 28, s. 78.
Notice of appeal
815. (1) An appellant who proposes to appeal to the appeal court shall give notice of appeal in such manner and within such period as may be directed by rules of court.
Extension of time
(2) The appeal court or a judge thereof may extend the time within which notice of appeal may be given.
R.S., c. C-34, s. 750; 1972, c. 13, s. 66; 1974-75-76, c. 93, s. 89.
Interim Release of Appellant
Undertaking or recognizance of appellant
816. (1) A person who was the defendant in proceedings before a summary conviction court and by whom an appeal is taken under section 813 shall, if he is in custody, remain in custody unless the appeal court at which the appeal is to be heard orders that the appellant be released
(a) on his giving an undertaking to the appeal court, without conditions or with such conditions as the appeal court directs, to surrender himself into custody in accordance with the order,
(b) on his entering into a recognizance without sureties in such amount, with such conditions, if any, as the appeal court directs, but without deposit of money or other valuable security, or
(c) on his entering into a recognizance with or without sureties in such amount, with such conditions, if any, as the appeal court directs, and on his depositing with that appeal court such sum of money or other valuable security as the appeal court directs,
and the person having the custody of the appellant shall, where the appellant complies with the order, forthwith release the appellant.
Application of certain provisions of section 525
(2) The provisions of subsections 525(5), (6) and (7) apply with such modifications as the circumstances require in respect of a person who has been released from custody under subsection (1).
R.S., 1985, c. C-46, s. 816; R.S., 1985, c. 27 (1st Supp.), s. 181(E).
Undertaking or recognizance of prosecutor
817. (1) The prosecutor in proceedings before a summary conviction court by whom an appeal is taken under section 813 shall, forthwith after filing the notice of appeal and proof of service thereof 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
(a) give an undertaking as prescribed in this section; or
(b) enter into a recognizance in such amount, with or without sureties and with or without deposit of money or other valuable security, as the justice directs.
Condition
(2) The condition of an undertaking or recognizance given or 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.
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.
Form of undertaking or recognizance
(4) An undertaking under this section may be in Form 14 and a recognizance under this section may be in Form 32.
R.S., c. 2(2nd Supp.), s. 16.
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.
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.
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.
R.S., c. 2(2nd Supp.), s. 16; 1974-75-76, c. 93, s. 91.1.
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.
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.
R.S., c. 2(2nd Supp.), s. 16; 1974-75-76, c. 93, s. 92.
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.
Presumption
(2) A conviction, order or sentence shall be deemed not to have been appealed against until the contrary is shown.
R.S., c. C-34, s. 753.
Procedure on Appeal
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.
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.
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.
R.S., c. C-34, s. 754; 1972, c. 13, s. 67; 1974-75-76, c. 93, s. 93.
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.
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.
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.
Trial de novo
(4) Notwithstanding subsections (1) to (3), where an appeal is taken under section 813 and where, 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 his 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 such rules as may be made under section 482 and for this purpose the provisions of sections 793 to 809 apply with such modifications as the circumstances require.
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.
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.
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.
R.S., 1985, c. C-46, s. 822; 1991, c. 43, s. 9.
823. Repealed, 1991, c. 43, s. 9
Adjournment
824. The appeal court may adjourn the hearing of an appeal from time to time as may be necessary.
R.S., c. C-34, s. 756.
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 any order made under section 816 or 817 or with the conditions of any undertaking or recognizance given or entered into as prescribed in either of those sections, or
(b) the appeal has not been proceeded with or has been abandoned,
order that the appeal be dismissed.
R.S., c. C-34, s. 757; R.S., c. 2(2nd Supp.), s. 18.
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.
R.S., c. C-34, s. 758.
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.
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.
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.
R.S., c. C-34, s. 759.
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.
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.
Duty of clerk of court
(3) Where 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 thereto, except the notice of intention to appeal and any recognizance.
R.S., c. C-34, s. 760.
Summary Appeal on Transcript or Agreed Statement of Facts
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.
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.
R.S., 1985, c. C-46, s. 829; R.S., 1985, c. 27 (1st Supp.), s. 182; 1999, c. 3, s. 56.
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.
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.
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.
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.
R.S., 1985, c. C-46, s. 830; R.S., 1985, c. 27 (1st Supp.), s. 182; 1991, c. 43, s. 9.
Application
831. The provisions of sections 816, 817, 819 and 825 apply, with such modifications as the circumstances require, in respect of an appeal under section 830, except that on receiving an application by the person having the custody of an appellant described in section 819 to appoint a date for the hearing of the appeal, the appeal court shall, after giving the prosecutor a reasonable opportunity to be heard, give such directions as it thinks necessary for expediting the hearing of the appeal.
R.S., 1985, c. C-46, s. 831; R.S., 1985, c. 27 (1st Supp.), s. 182.
Undertaking or recognizance
832. (1) When a notice of appeal is filed pursuant to section 830, the appeal court may order that the appellant appear before a justice and give an undertaking or enter into a recognizance as provided in section 816 where the defendant is the appellant, or as provided in section 817, in any other case.
Attorney General
(2) Subsection (1) does not apply where the appellant is the Attorney General or counsel acting on behalf of the Attorney General.
R.S., 1985, c. C-46, s. 832; R.S., 1985, c. 27 (1st Supp.), s. 182.
No writ required
833. No writ of certiorari or other writ is required to remove any conviction, judgment, verdict or other final order or determination of a summary conviction court for the purpose of obtaining the judgment, determination or opinion of the appeal court.
R.S., 1985, c. C-46, s. 833; R.S., 1985, c. 27 (1st Supp.), s. 182; 1991, c. 43, s. 9.
Powers of appeal court
834. (1) When a notice of appeal is filed pursuant to section 830, the appeal court shall hear and determine the grounds of appeal and may
(a) affirm, reverse or modify the conviction, judgment, verdict or other final order or determination, or
(b) remit the matter to the summary conviction court with the opinion of the appeal court,
and may make any other order in relation to the matter or with respect to costs that it considers proper.
Authority of judge
(2) Where the authority and jurisdiction of the appeal court may be exercised by a judge of that court, the authority and jurisdiction may, subject to any applicable rules of court, be exercised by a judge of the court sitting in chambers as well in vacation as in term time.
R.S., 1985, c. C-46, s. 834; R.S., 1985, c. 27 (1st Supp.), s. 182; 1991, c. 43, s. 9.
Enforcement
835. (1) Where the appeal court renders its decision on an appeal, the summary conviction court from which the appeal was taken or a justice exercising the same jurisdiction has the same authority to enforce a conviction, order or determination that has been affirmed, modified or made by the appeal court as the summary conviction court would have had if no appeal had been taken.
Idem
(2) An order of the appeal court may be enforced by its own process.
R.S., 1985, c. C-46, s. 835; R.S., 1985, c. 27 (1st Supp.), s. 182.
Appeal under section 830
836. Every person who appeals under section 830 from any conviction, judgment, verdict or other final order or determination in respect of which that person is entitled to an appeal under section 813 shall be taken to have abandoned all the person's rights of appeal under section 813.
R.S., 1985, c. C-46, s. 836; R.S., 1985, c. 27 (1st Supp.), s. 182; 1991, c. 43, s. 9.
Appeal barred
837. Where it is provided by law that no appeal lies from a conviction or order, no appeal under section 830 lies from such a conviction or order.
R.S., 1985, c. C-46, s. 837; R.S., 1985, c. 27 (1st Supp.), s. 182.
Extension of time
838. The appeal court or a judge thereof may at any time extend any time period referred to in section 830, 831 or 832.
R.S., 1985, c. C-46, s. 838; R.S., 1985, c. 27 (1st Supp.), s. 182.
Appeals to Court of Appeal
Appeal on question of law
839. (1) Subject to subsection (1.1), an appeal to the court of appeal as defined in section 673 may, with leave of that court or a judge thereof, be taken on any ground that involves a question of law alone, against
(a) a decision of a court in respect of an appeal under section 822; or
(b) a decision of an appeal court under section 834, except where that court is the court of appeal.
Nunavut
(1.1) An appeal to the Court of Appeal of Nunavut may, with leave of that court or a judge of that court, be taken on any ground that involves a question of law alone, against a decision of a judge of the Court of Appeal of Nunavut acting as an appeal court under subsection 812(2) or 829(2).
Sections applicable
(2) Sections 673 to 689 apply with such modifications as the circumstances require to an appeal under this section.
Costs
(3) Notwithstanding subsection (2), the court of appeal may make any order with respect to costs that it considers proper in relation to an appeal under this section.
Enforcement of decision
(4) The decision of the court of appeal may be enforced in the same manner as if it had been made by the summary conviction court before which the proceedings were originally heard and determined.
Right of Attorney General of Canada to appeal
(5) 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 Part.
R.S., 1985, c. C-46, s. 839; R.S., 1985, c. 27 (1st Supp.), s. 183; 1999, c. 3, s. 57.
Fees and Allowances
Fees and allowances
840. (1) Subject to subsection (2), the fees and allowances mentioned in the schedule to this Part are the fees and allowances that may be taken or allowed in proceedings before summary conviction courts and justices under this Part.
Order of lieutenant governor in council
(2) The lieutenant governor in council of a province may order that all or any of the fees and allowances mentioned in the schedule to this Part shall not be taken or allowed in proceedings before summary conviction courts and justices under this Part in that province and, when the lieutenant governor in council so orders, he or she may fix any other fees and allowances for any items similar to those mentioned in the schedule, or any other items, to be taken or allowed instead.
R.S., 1985, c. C-46, s. 840; 1994, c. 44, s. 83; 1997, c. 18, s. 114.
Part XXVII: Section 1 of 2
Next
Schedule for this Part
|
