Supreme Court of Canada criminal appeal: Leave and Appeals as of Right

Canadian public legal education

Educational notice: This article explains general Canadian criminal appeal processes. It does not assess a case, recommend a legal strategy, or predict an outcome.

A Supreme Court of Canada criminal appeal is a request for Canada’s final court of appeal to review a decision from a court of appeal. The Supreme Court of Canada does not conduct a new trial. Most criminal cases require permission, called leave to appeal, and only limited cases may proceed as of right. The governing route, issues, deadlines and available orders depend on the legislation, the lower-court judgment and the nature of the proceeding.

What this issue means

The Supreme Court of Canada, often called the SCC, is Canada’s final court of appeal. In a criminal matter, it ordinarily reviews a judgment of a provincial or territorial court of appeal or the Court Martial Appeal Court. It focuses on legal issues raised by the record and decisions below. It does not retry witnesses.

An appeal is different from a trial. At trial, evidence is admitted and facts are found. On appeal, the parties identify alleged legal errors and the remedy they say follows. Questions about admissibility, credibility, reliability, weight and proof remain distinct. For example, a ruling that evidence was legally admissible does not determine that it was credible or sufficient to prove an offence beyond a reasonable doubt.

The SCC’s jurisdiction is created by legislation. For indictable offences, sections 691 to 695 of the Criminal Code set out important routes and powers. The Supreme Court Act and the Rules of the Supreme Court of Canada also govern procedure. Other routes may apply to summary conviction, military or specialized proceedings.

Supreme Court of Canada criminal appeal: Leave or appeal as of right

There are two main ways a criminal appeal may reach the SCC.

Leave to appeal

In most criminal cases, a party must first apply for leave. Leave is permission to have the appeal heard. It is not the appeal itself, and granting leave does not reverse the lower-court decision.

Under section 40 of the Supreme Court Act, the Court considers whether a question is important to the public, whether an issue of law or mixed law and fact ought to be decided by the Court, or whether the matter otherwise warrants its decision. For indictable offence judgments, the Criminal Code supplies the principal leave routes. A disagreement with the result, without an issue falling within the Court’s jurisdiction and leave criteria, is not enough.

Leave applications are decided from written materials. The applicant files a notice, the judgments below, a memorandum and service material. A respondent may respond, and the applicant may reply. An application is generally due within 60 days after the court of appeal judgment. Legislation and Rules govern time calculation, service and extension requests.

Appeal as of right

An appeal as of right does not require leave, but it exists only where legislation expressly provides it. Under section 691 of the Criminal Code, an accused may have a right of appeal in defined circumstances, including on a question of law on which a judge of the court of appeal dissents. Section 691 also contains particular routes where an acquittal is set aside, including where the court of appeal enters a guilty verdict.

Under section 693, the Attorney General may appeal in defined cases, either on a question of law on which a court of appeal judge dissents or, with leave, on a question of law. Mental-disorder findings and dispositions have related but separate provisions, including section 692.

Not every dissent creates an appeal as of right. The dissent must engage a qualifying question of law within the applicable statutory provision. Identifying the legal question and permissible scope can be difficult. A lawyer can assess the reasons, formal judgment and legislation together.

What may happen next

The next steps depend on the route.

For a leave application, the Registry checks whether the materials are complete. The other party may respond. The materials are sent to the judges deciding whether leave should be granted. If leave is dismissed, the proposed appeal does not proceed. If granted, the parties receive directions.

For an appeal as of right, the appellant files and serves a notice of appeal that identifies the statutory right and question of law. Section 58 of the Supreme Court Act generally requires a notice of appeal within 30 days after the judgment appealed from. Where leave has been granted, the 30-day period generally runs from the leave judgment. Current legislation, Rules and SCC guidance should be checked immediately because filing, service and calculation requirements are technical.

Once an appeal is underway, the parties prepare the record, factums and required documents. The Court may permit interveners to address legal issues. At the hearing, counsel usually present argument and answer questions. The Court may decide orally or reserve judgment.

Under section 695 of the Criminal Code, the SCC may make an order the court of appeal could have made and any order needed to give effect to its judgment. Depending on the lawful route and issues, it may dismiss or allow an appeal, restore or set aside a lower-court order, order a new trial, enter another permitted verdict, or remit an issue. No outcome is automatic.

Important educational considerations

Questions of law matter. The principal criminal appeal routes to the SCC are limited to questions of law. A question of fact concerns what happened. A question of law concerns the legal rule or standard. A mixed question applies a legal standard to facts. Classification may itself be contested.

Leave and success are different decisions. Leave concerns whether the Court will hear the case. An appeal judgment concerns whether a reviewable error occurred and what remedy, if any, is legally justified.

The record normally controls. An appeal usually proceeds on the record created below. New evidence is exceptional and requires a formal application under governing law. A party should not assume that documents or accounts omitted at trial can simply be added at the SCC.

An appeal does not automatically suspend every consequence. Filing a leave application or notice of appeal does not necessarily stay a sentence, order or other legal effect. Release pending appeal, a stay or other interim relief involves separate legal tests and procedures.

Court information may be public. Judgments, docket information and some filed materials may be publicly accessible. Publication bans, sealing orders and statutory privacy protections continue to matter. Parties must comply with them when speaking, sharing documents or seeking support.

Terminology should remain precise. An allegation is an assertion. A charge is a formal accusation. A conviction is a finding of guilt. An acquittal is a finding of not guilty. A withdrawal, stay or dismissal ends or pauses a prosecution in different ways and is not necessarily an acquittal. An allowed appeal does not always produce an acquittal; it may result in a new trial or another order.

Practical steps that are general and non-legal

Keep complete copies of the trial and appeal judgments, formal orders, notices and correspondence.

Record the date the court of appeal judgment was pronounced and obtain the entered order when available.

Check the SCC website, current Rules, forms and Registry notices rather than relying on an old checklist.

Keep a simple calendar of filing and service dates, without assuming that ordinary calendar counting applies.

Note every publication ban, sealing order or privacy restriction before sharing case materials.

Organize questions for a lawyer, including the possible statutory route, question of law, deadline and any interim issue.

Use trusted people and professional supports for practical or emotional needs, while protecting confidential and restricted information.

These steps do not replace legal advice or satisfy court requirements.

Emotional and family impact

An application to Canada’s final court can bring uncertainty, renewed attention to painful events and pressure on family relationships. A leave decision may also feel difficult because it addresses whether an appeal will be heard, not every concern a person may have about the case.

Clear boundaries can help. Families may choose one person to share verified scheduling information, avoid debating evidence publicly, and plan support around hearings. Counsellors, health professionals, cultural or spiritual supports and community services may assist. In an immediate crisis, contact emergency or local crisis services.

When professional assistance may be appropriate

Prompt advice from a lawyer experienced in criminal appeals may be especially important when:

a court of appeal has released reasons or a formal judgment;

the reasons include a dissent;

an acquittal has been set aside or a conviction entered on appeal;

the Crown is considering or has started an appeal;

a deadline may be close or missed;

release, a stay, publication restrictions or sealed materials are involved;

fresh evidence is being considered; or

the proper route or question of law is unclear.

Legal aid plans, lawyer-referral services and the SCC’s official legal-information page may identify available assistance. Eligibility and services vary by province, territory and provider.

How Presumption of Innocence Canada may help

Presumption of Innocence Canada provides public legal education and moderated discussion groups for Canadian adults. Its materials explain terminology and general Canadian legal processes using publicly accessible sources. Moderated groups provide peer conversation subject to group rules and privacy limitations.

PIC does not provide legal advice, legal representation, individualized case assessment, evidence review, witness preparation, legal strategy, contact with justice officials, determinations of guilt or innocence, or predictions about outcomes. Its educational materials and discussion groups do not replace advice from a qualified lawyer or information from an official court source.

Frequently Asked Questions

1. What is a Supreme Court of Canada criminal appeal?

It is an appeal to Canada’s final court from an eligible appellate judgment. Most criminal cases require leave. A limited appeal as of right may exist where legislation expressly provides one.

2. Is an SCC criminal appeal automatic after a court of appeal decision?

No. Most cases require leave, and the SCC selects cases that meet its statutory criteria. Even an appeal as of right requires a valid statutory route and compliance with filing and service rules.

3. What is the difference between leave and an appeal as of right?

Leave is permission to proceed and is decided before the merits appeal. An appeal as of right does not require permission but is confined to circumstances set out in legislation.

4. Does every dissent in a court of appeal create an appeal as of right?

No. The dissent must concern a qualifying question of law and fit the relevant statutory provision. The reasons and formal judgment should be reviewed together.

5. Can the Crown appeal to the SCC?

Yes, but only within statutory limits. Section 693 of the Criminal Code permits an Attorney General appeal in defined circumstances on a question of law, either as of right following a qualifying dissent or with leave.

6. Can fresh evidence be filed at the SCC?

Only exceptionally and through the proper application. Appeal courts do not ordinarily retry cases, and legal tests govern whether proposed fresh evidence may be admitted.

7. Does filing an appeal stop a sentence or guarantee release?

No. A stay or release pending appeal is a separate matter with its own legal authority, test and procedure. The applicable court and process depend on the circumstances.

8. What can the SCC do after hearing the appeal?

The Court may dismiss or allow the appeal and make an order available to the court of appeal, together with orders needed to implement its judgment. The lawful result may include a new trial or another disposition, but no result can be predicted.

Related educational resources

Criminal appeals in Canada

Fresh evidence in a criminal appeal in Canada

Character evidence in a criminal trial in Canada

Expert witnesses in Canadian criminal court

Publication bans and access to court records

Suggested authoritative Canadian sources

Justice Laws Website: Criminal Code, especially sections 691 to 695

Justice Laws Website: Supreme Court Act, especially sections 40 and 58

Justice Laws Website: Rules of the Supreme Court of Canada

Supreme Court of Canada: Applying for leave to appeal

Supreme Court of Canada: Deadlines, filing guidance and court hearings

Supreme Court of Canada judgments and Cases in Brief

Official provincial and territorial legal aid and lawyer-referral sources

Conclusion

A Supreme Court of Canada criminal appeal is a specialized review by Canada’s final court, not another trial. Most cases require leave based on the importance of the legal issue, while limited statutory circumstances permit an appeal as of right. Because the route, question of law and deadlines can be decisive, readers should consult current official court information and obtain advice promptly from a qualified lawyer.

Short sources list

Criminal Code, RSC 1985, c C-46, ss 691-695.

Supreme Court Act, RSC 1985, c S-26, ss 40, 58.

Rules of the Supreme Court of Canada, SOR/2002-156.

Supreme Court of Canada, “Applying for leave to appeal” and filing guidance.

Presumption of Innocence Canada, public website pages reviewed for organizational descriptions and limitations.

Educational disclaimer

“This article provides general educational information only. It is not legal advice and does not create a lawyer-client relationship. Legal procedures and rights may vary by jurisdiction and individual circumstances. Anyone facing a legal matter should obtain advice from a qualified lawyer.”

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