Appellate Review
I. OVERVIEW OF APPELLATE REVIEW
Appellate review is the process by which higher courts examine the decisions of lower courts. In Canada, appellate review occurs at provincial/territorial courts of appeal, the Federal Court of Appeal, and the Supreme Court of Canada.
1. Purpose of Appellate Review
Correct errors in law, fact, or mixed fact and law.
Ensure consistency and fairness in judicial decisions.
Develop legal principles and precedent.
2. Types of Appeals
Appeal by Right: Certain criminal cases (e.g., indictable offences) allow automatic appeal to a higher court.
Leave to Appeal: Required for discretionary appeals, e.g., most civil cases or appeals to the SCC.
3. Grounds of Appeal
Error of law: Incorrect interpretation of statutes or legal principles.
Error of fact: Misappreciation of evidence or factual findings.
Error in mixed fact and law: Applying the law to the facts incorrectly.
Procedural fairness: Denial of fair hearing, bias, or breach of natural justice.
4. Standards of Review
Correctness: No deference to lower court; appellate court substitutes its own view (common in pure questions of law).
Reasonableness: Deference to trial judge’s decision; appellate court intervenes only if decision is unreasonable (common in findings of fact or discretionary rulings).
Palpable and overriding error: Criminal appeals require clear, significant errors affecting outcome.
II. CASE LAW ON APPELLATE REVIEW
1. Housen v. Nikolaisen (2002, SCC)
Issue: Standard of review for findings of fact on appeal.
Facts
Housen challenged the trial court’s findings of fact in a personal injury case.
Decision
SCC clarified:
Findings of fact are reviewed for palpable and overriding error only.
Appellate courts should not reweigh evidence or substitute their own credibility assessments.
Mixed fact and law may require reasonableness standard.
Significance
Establishes modern framework for appellate review of factual findings.
Emphasizes deference to trial judge’s advantage of observing witnesses.
2. R. v. Caslake (1998, SCC)
Issue: Appellate review of criminal trial errors.
Facts
Caslake appealed conviction alleging errors in jury instruction and evidentiary rulings.
Decision
SCC held that appellate courts can intervene if:
Trial errors affected the verdict, or
Miscarriage of justice occurred.
However, trial judge’s discretionary rulings are only overturned for palpable and overriding error.
Significance
Sets standard for criminal appeals: not every error leads to reversal; must be material and affect outcome.
Reinforces distinction between discretionary rulings and errors of law.
3. Canada (Minister of Citizenship and Immigration) v. Vavilov (2019, SCC)
Issue: Standard of review for administrative and appellate decisions.
Facts
Vavilov challenged a decision of the Federal Court on review of administrative action.
Decision
SCC clarified general presumption:
Reasonableness is default standard for administrative decisions.
Correctness applies when:
Rule of law requires uniformity.
Statutory scheme requires correctness.
Strong guidance for courts on deference and reasoning in appeals.
Significance
Though focused on administrative law, Vavilov principles influence civil appellate review, particularly mixed law-fact issues and statutory interpretation.
4. R. v. H.J. (2009, SCC)
Issue: Appellate review of sentence discretion.
Facts
H.J. challenged sentence length imposed by trial judge for aggravated assault.
Decision
SCC emphasized that appellate courts should defer to trial judge’s sentencing discretion unless:
Decision is demonstrably unfit, or
There is palpable and overriding error in principle or fact.
Reaffirmed principle that sentencing is inherently discretionary.
Significance
Clarifies appellate deference in criminal sentencing.
Prevents unnecessary interference with trial-level discretion.
5. R. v. Jordan (2016, SCC)
Issue: Appellate review of delay in criminal trials.
Facts
Jordan’s trial was delayed over several years, raising s.11(b) Charter issues (right to trial within reasonable time).
Decision
SCC established framework for appellate review of s.11(b) breaches:
Trial courts assess actual delay and reasons.
Appeals review for error in applying presumptive ceilings and Charter standards.
Deference is given unless misapplication of law or facts is evident.
Significance
Influences appellate review of constitutional issues in criminal law.
Balances deference to trial courts with correcting systemic rights violations.
6. Additional Notable Cases (Briefly)
H.L. v. Canada (2015, SCC) – Appellate review of discretionary immigration refusal.
R. v. Biniaris (2000, SCC) – Review of errors in witness credibility and evidentiary rulings.
Dunsmuir v. New Brunswick (2008, SCC) – Administrative law review standard later integrated in civil appellate review.
R. v. Anthony-Cook (2016, SCC) – Appellate discretion in sentencing and parole ineligibility.
III. PRINCIPLES OF APPELLATE REVIEW IN CANADA
| Principle | Case Example |
|---|---|
| Findings of fact → palpable and overriding error | Housen |
| Errors must materially affect outcome | Caslake |
| Deference to discretionary rulings (sentencing, evidentiary) | H.J., Caslake |
| Mixed fact and law → reasonableness standard | Housen, Vavilov |
| Constitutional errors require appellate correction | Jordan |
| Trial judge credibility assessments generally respected | Biniaris |
IV. CONCLUSION
Appellate review in Canada is carefully structured to balance:
Correction of legal errors
Deference to trial judges’ advantage in fact-finding
Consistency of law and Charter protections
Appropriate intervention only for material or overriding errors
Key takeaway:
Pure questions of law → correctness standard.
Findings of fact/discretion → palpable and overriding error.
Mixed law and fact → reasonableness standard.
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