Appeals
Bail pending appeal
R v Oland, 2017 SCC 17
Leading case on test for bail pending appeal. The appellant must establish (1) that the appeal is not frivolous, (2) that they will surrender themselves into custody as required, and (3) that their detention is not required in the public interest. Only rarely will the third criterion be engaged.
R v Griffin, 2020 ABCA 319
Just because a legal argument is novel, does not mean it is frivolous.
R v Sousa, 2020 ONCA 432
Test for varying a bail pending appeal. Appellant must establish that proposed conditions satisfy the three statutory criteria.
r v Seeratan, 2020 ONCA 201
At the bail stage, the materials necessary to perfect the appeal-in this case, an affidavit from the appellant-is not necessary to show the appeal is not frivolous.
R v Dosanjh, 2020 ONCA 571
Test for directing a panel review of a single judge’s decision on a bail pending appeal application. Must be arguable that initial bail judge committed material errors of fact or law, or that their decision was clearly unwarranted.
R v Allison, 2021 ONCA (unreported)
Even where grounds “appear weak” and the appellant received a lengthy sentence (6 years), where they are a first offender, have positive antecedents, and complied with their trial bail they are releasable on bail pending appeal.
Standard of review
Housen v Nikolaisen, 2002 SCC 33
Leading case on standard of review. The standard of review on questions of fact is palpable and overriding error. The standard of review on questions of law is correctness. The standard of review on questions of mixed fact and law may be either.
R v Shepherd, 2009 SCC 35
The standard of review on the application of a legal standard to a particular set of facts is correctness. The standard of review on whether an officer had reasonable and probable grounds is therefore correctness.
R v Friesen, 2020 SCC 9
An appellate court may only interfere with a sentence where (a) there was an error in principle that had an impact on the sentence or (b) the sentence was manifestly unfit.
R v Howells, 2009 BCCA 460
The standard of review on appeal from a certiorari decision is correctness.
R v tran, 2010 SCC 58
The standard of review on the question of whether a defence ought to have been left with the jury is correctness.
R v Thalheimer, 2022 SKCA 25
The standard of review on the application of the W(D) test is correctness.
unreasonable verdicts
R v Beaudry, 2007 SCC 5
A verdict can be unreasonable either where (a) there was insufficient evidence for a reasonable trier of fact to convict or (b) there was sufficient evidence, but the reasons disclose that the verdict was reached irrationally or illogically. In the first situation, an acquittal is necessary. In the second, the remedy is a new trial.
R v Hay, 2013 SCC 61
In eyewitness identification cases, a verdict may be unreasonable where the court is satisfied that the identification evidence cannot support an inference of guilt beyond a reasonable doubt.
R v Lights, 2020 ONCA 128
It is unreasonable to conclude from the fact of handling a firearm alone that the accused knew the firearm was loaded.
insufficiency of reasons
R v GF, 2021 SCC 20
Leading case on test for insufficiency of reasons. Trial judges benefit from the presumption of correct application: only where ambiguities render judgment unintelligible will new trial be required.
Champoux v Jefremova, 2021 ONCA 92
A detailed factual recitation is no substitute for a considered analysis of the issues. Lengthy judgments can still be found insufficient.
Farej v Fallows, 2022 ONCA 254
Ambiguous reasons are still insufficient if the reviewing court is unable to tell which of several possible meanings the trial judge actually intended.
miscarriages of justice
R v Bains, 2015 ONCA 677
Test for miscarriages of justice as freestanding grounds of appeal. The verdict need not be wrongful or unreasonable. To set aside a conviction on this basis, the appellant must establish an appearance of unfairness that would taint the administration of justice in the eyes of a reasonable observer.
R v Murray, 2017 ONCA 393
Repeated and unnecessary interventions by a trial judge may require a new trial.
R v Chacon-Perez, 2022 ONCA 3
Improper Crown cross-examination or closing addresses to the jury can amount to a miscarriage of justice and require a new trial.
Curative proviso
R v Van, 2009 SCC 22
A conviction may only be saved in the face of a legal error where (a) the error was harmless or (b) the Crown’s case was so overwhelming that a reasonably instructed trier of fact would inevitably have convicted.
R v SCC, 2022 YKCA 2
Where credibility is a central issue in the case and it is improperly undermined, appellate courts are reluctant to apply the curative proviso.
R v Samaniego, 2022 SCC 9
The curative proviso can only rarely apply in cases where cross-examination was curtailed. (Proviso applied here, notwithstanding “experienced appellate counsel” Chris Rudnicki’s able submissions.)