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Criminal - Summary Conviction Appeals [s.839]. R. v. Dartiguenave
In R. v. Dartiguenave (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal appeal, here from a verdict of not criminally responsible (NCR).
Here the court considers the leave to appeal test for a summary conviction appeal [CCC 839]:[42] A defendant may be granted leave to appeal before the Court of Appeal from a decision of the Superior Court of Justice dismissing an appeal from a summary conviction “on any ground that involves a question of law alone”: Criminal Code, s. 839. The respondent does not contest the appellant’s request for leave to appeal Parfett J.’s decision. However, “a second appeal in summary conviction proceedings should be the exception and not the rule”: R. v. R. (R.), 2008 ONCA 497, 90 O.R. (3d) 641, at para. 25. In determining whether an appeal should be granted, it is necessary to assess the significance of the legal issues raised to the administration of criminal justice, and the merits of the grounds of appeal. As stated in R. v. R. (R.), at para. 37:On the one hand, if the issues have significance to the administration of justice beyond the particular case, then leave to appeal may be granted even if the merits are not particularly strong, though the grounds must at least be arguable. On the other hand, where the merits appear very strong, leave to appeal may be granted even if the issues have no general importance, especially if the convictions in issue are serious and the applicant is facing a significant deprivation of his or her liberty. . R. v. Conron
In R. v. Conron (Ont CA, 2025) the Ontario Court of Appeal dismissed a bail pending appeal application.
Here the court considers a 'second appeal' on a question of law (with leave) after a summary conviction appeal was heard at the Superior Court [CCC 839]:(c) A Second Appeal
[11] Another set of principles also comes into play in this case because the applicant seeks a second appeal for which leave is required under s. 839 of the Criminal Code: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. [Emphasis added.][12] Doherty J.A. explained the gatekeeping function of s. 839 in R. v. R.R., 2008 ONCA 497, 90 O.R. (3d) 641, at paras. 29-32. He noted, at para. 30, that the applicant must establish two factors: first, “the significance, beyond the specific case, of the proposed question of law to the administration of justice in the province” and second, “the strength of the appeal.” He added, at para. 32, that leave may be granted “where the merits of the proposed question of law are arguable, even if not strong, and the proposed question of law has significance to the administration of justice beyond the four corners of the case”, and, “where there appears to be a ‘clear’ error even if it cannot be said that the error has significance to the administration of justice beyond the specific case.” Doherty J.A. also said that a judge considering bail pending appeal under s. 839 should “take a hard look at the potential merits of the application for leave to appeal before granting bail”: R. v R.H. (27 February 2020), Toronto, M51332 (Ont. C.A.).
[13] Finally, a first unsuccessful appeal “typically diminishes the weight to be given to the reviewability interest and increases the weight to be given to the enforceability interest”: R. v. Hoggard, 2024 ONCA 688, at para. 9, per Copeland J.A. Of course, each case must be assessed on its merits. . R. v. J.S.
In R. v. J.S. (Ont CA, 2024) the Ontario Court of Appeal allowed a Crown appeal, here from a summary conviction appeal - noting the nature of this appeal proceeding:[56] The trial judge's underlying findings of fact were owed deference by the summary conviction appeal court, as well as by this court.
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[58] This appeal is one more step removed from the trial judge. It is an appeal from the decision of the Superior Court of Justice, not a second appeal from the trial judge’s decision: R. v. R.R., 2008 ONCA 497, 90 O.R. (3d) 641, at para. 24. This form of appeal must come within the confines of s. 839(1) of the Criminal Code, R.S.C. 1985, c. C-46, and thus must be based on a question of law alone. Accordingly, the question for this court is whether there exists an error of law in the summary conviction appeal judge’s characterization of a period of delay or in the ultimate determination of unreasonable delay. . R. v. Khandakar
In R. v. Khandakar (Ont CA, 2024) the Ontario Court of Appeal noted the SOR for criminal summary conviction appeals:[64] Appeals to this court in summary conviction matters are limited to grounds that involve “a question of law alone”: Criminal Code, s. 839(1). The term “question of law alone” means the same thing as “question of law”: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 31. To qualify, “[a]n appealable error must be traced to a question of law, rather than a question about how to weigh evidence and assess whether it meets the standard of proof”: R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405, at para. 10; R. v. Hodgson, 2024 SCC 25, at para. 34. . R. v. Hart
In R. v. Hart (Ont CA, 2024) the Ontario Court of Appeal illustrates some summary conviction appeal procedures:[1] On April 2, 2015, the applicant was found guilty in the Ontario Court of Justice of operating a motor vehicle with a blood alcohol concentration above the legal limit. Her appeal to the Superior Court of Justice (sitting as a Summary Conviction Appeal Court) against her conviction only was dismissed on March 7, 2016. An application for leave to appeal to this court was heard by a panel on October 4, 2016 and was dismissed, with a final order dismissing the leave to appeal application entered and issued by this court on March 6, 2017. The appeal panel found that the grounds of appeal the applicant was advancing did not raise a question of law alone, as required by s. 839 of the Criminal Code, and were also not such as to meet the requirements set out in R. v. R.R., 2008 ONCA 497, 96 O.R. (3d) 641. No appeal was taken from this court’s order to the Supreme Court of Canada.
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[5] As for the applicant’s motion for leave to appeal her sentence, no appeal was taken from the sentence imposed in the Ontario Court of Justice. Any appeal from sentence is properly brought before the Summary Conviction Appeal Court and, in the absence of such an appeal, this court has no jurisdiction to entertain a sentence appeal directly from the Ontario Court of Justice. . R. v. Lloyd
In R. v. Lloyd (Ont CA, 2023) the Court of Appeal considered the SOR for a second summary conviction appeal:[14] The question of whether an appeal should be allowed to challenge a summary conviction judge’s assessment of the sufficiency of a trial judge’s reasons, is a question of law: R. v. Capano, 2014 ONCA 599, 314 C.C.C. (3d) 135; R. v. Ralph, 2008 NLCA 70, 281 Nfld. & P.E.I.R. 324, at para. 14; R. v. Minuskin, 2003 CanLII 11604 (ON CA), 68 O.R. (3d) 577 (C.A.), at para. 3; and R. v. A.M., 2022 ONCA 154, 160 O.R. (3d) 561, at paras. 1 and 24. . R. v. Asemota
In R. v. Asemota (Ont CA, 2023) the Court of Appeal considered the threshold for leave to appeal a criminal summary conviction matter:[3] The threshold test for leave to appeal to this court on a summary conviction matter is high because it involves a request for a second appeal: R. v. R.R., 2008 ONCA 497, 90 O.R. (3d) 641. ... . R. v. Kuffuor
In R. v. Kuffuor (Ont CA, 2023) the Court of Appeal considers the test for granting leave to appeal in summary conviction matters:[2] The test for granting leave to appeal in a summary conviction matter is well-established. Leave should be granted sparingly, and it is restricted to a question of law alone. Two factors are generally considered: 1) the significance of the legal issues raised to the general administration of criminal justice, and 2) the merits of the proposed grounds of appeal: see R. v. R. (R.), 2008 ONCA 497, 90 O.R. (3d) 641. . R. v. Berhe
In R. v. Berhe (Ont CA, 2022) the Court of Appeal considered appeals from summary conviction matters:[9] Under s. 839(1), a court of appeal may grant leave to appeal from a decision of a summary conviction appeal court on a question of law alone. However, in R. v. R.(R.), 2008 ONCA 497, 90 O.R. (3d) 641, this court held that leave should be granted only sparingly, after a consideration of the significance of the legal errors raised to the general administration of justice, along with the merits of the proposed appeal.
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