Criminal Matters A comparison of criminal vs non-criminal proceedings before the Supreme Court of Canada

Approximately half of the appeals heard by the Supreme Court of Canada are criminal appeals. While there are many similarities between criminal and non-criminal proceedings before the Court, there are also a number of significant differences, particularly with respect to the jurisdiction of the Court, appeals as of right, leave application hearings, and costs.

1. Jurisdiction for Granting Leave to Appeal
The Court has jurisdiction under s. 40 of the Supreme Court Act to grant leave to appeal for cases that raise an issue of national or public importance. But for indictable offences, the Court’s jurisdiction arises instead under the Criminal Code.  Although the Court still applies the “national or public importance” test for cases proceeding under the Code, the test is usually applied less stringently than in non-criminal cases.

2. Appeal “As of Right”
Sections 691 to 693 of the Criminal Code set out the circumstances in which an issue of law can be appealed to the Court “as of right”.  For example, a person convicted of an indictable offence which is affirmed by the court of appeal has a right to appeal on any question of law on which a judge of the appeal court dissents. And a person who is acquitted of an indictable offence and whose acquittal is set aside by the court of appeal has a right to appeal on (i) any question of law on which an appeal court judge dissents, or (ii) on any question of law if the appeal court enters a verdict of guilty.  But there is no appeal “as of right” for non-criminal matters — except in rare cases arising under the Competition Act and the Canada Elections Act, leave from the Court is always required.

3. Oral Hearing of Application for Leave to Appeal
Most applications for leave to appeal are decided by the Court on the basis of written submissions only. But in criminal cases, an applicant is entitled to an oral hearing of the leave application where an acquittal of an indictable offence is set aside and a new trial is ordered, provided there is no right to appeal. There is no equivalent right to an oral hearing in non-criminal matters.

4. Costs
Costs are not generally awarded in criminal matters. But in non-criminal matters, costs are generally awarded pursuant to the Court’s tariff, provided costs are requested.