Legal Chronicles

BASIC PRINCIPLES OF APPELLATE LITIGATION IN CANADA AND THE UNITED
STATES
Daniel Martin Bellemare Avocat – Attorney at Law
Barreau du Québec – Vermont Bar
August 2021
INTRODUCTION
This activity provides attorneys in the Province of Québec an opportunity to become more
familiar with and acquire a better understanding of the appeal process in Canada and the United
States. Unlike a trial where a single judge assesses the evidence adduced by the parties (witnesses;
material evidence), an appeal concentrates on a trial court’s decision — mostly a final decision on
the merits. A court of appeal sits in banco, hearing oral representations based on argumentation in
an appellate brief. An appeal challenges either an error of law or an erroneous finding of fact. On
appeal the court does not retry the case. Now let’s put these basic principles in context.
I. APPELLATE LITIGATION: BASICS
Appellate review is governed by two basics principles : jurisdiction and standard of review.
Keep those two principles in mind, as they are paramount.
II. JURISDICTION
In Canada and in the United States constitutional provisions set forth the institutional
structure of the Judiciary:
The Constitution Acts 1867 to 1982 (Canada)
VII. Judicature
Appointment of Judges
96 The Governor General shall appoint the Judges of the Superior, District, and County Courts in each
Province, except those of the Courts of Probate in Nova Scotia and New Brunswick.
General Court of Appeal, etc.
101 The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for
the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the
Establishment of any additional Courts for the better Administration of the Laws of Canada.

 

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U.S. Const. Art. III
Section 1.
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts
as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior
courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services,
a compensation, which shall not be diminished during their continuance in office.
In Canada, the Supreme Court of Canada is the court of last resort. A nine-judge panel hears
appeals from the Federal Court of Appeal and courts of appeal sitting in the ten provinces and the
territories. The Federal Court of Appeal hears appeal from decisions of the Federal court whereas
provincial courts of appeal hear appeal from provincial trial courts. In the United States, the federal
court system comprises the Supreme Court, United States court of appeals, and United States district
courts. The Supreme Court of the United States is the court of last resort as to decisions of United
States court of appeals. 28 U.S.C. § 1254. Like in Canada, a nine-judge panel presides over
hearings before the United States’ Supreme Court. State supreme courts’ decisions may also be
appealed to the United States’ Supreme Court if the question presented to the Court involves a
federal “ground” (e.g. United States Constitution; federal statutes or treaties). 28 U.S.C. § 1257.
Appeal is a statutory right. The short of the matter is: No right of appeal exists, but as
provided by statute. A statute may provide a right of appeal either as of right or upon permission.
Appeals to the Supreme Court of Canada are upon permission or leave to appeal, except that an
appeal as of right exists in criminal cases if a judge of a court of appeal dissents on an issue of law.
Par. 691 (1) a) Criminal Code. This is a departure from standard practice before the Court.
An appeal as of right lies in a final decision of a United States’ district court. 28 U.S.C. §
1291. A limited category of interlocutory decisions may be appealed as of right (e.g. interlocutory
injunction order; order as to receiverships). 28 U.S.C. § 1292 (a). If a district court states in writing
that an interlocutory order “involves a controlling question of law as to which there is substantial
ground for difference of opinion and that an immediate appeal from the order may materially
advance the ultimate termination of the litigation”, a United States’ court of appeal may in its
discretion to hear the appeal. 28 U.S.C. § 1292 (a). An appeal to the United States’ Supreme Court
is by way of a writ of certiorari (upon permission), unless the Court has original and/or exclusive

 

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jurisdiction over a case or controversy. 28 U.S.C. § 1251.
The first step when confronted with an adverse ruling (final or interlocutory) of a trial court
is to verify whether a statute provides a right of appeal. Below is a limited list of Canadian and
American federal statutes providing a right of appeal:
Canada
• Supreme Court Act R.S.C. 1985 c. S-26 (ss. 35-41)
• Federal Court Act R.S.C. 1985 c. F-7 (s. 27).
• Criminal Code R.S.C. 1985 c. C-46 (ss. 686 and 691)
• Sections 29-32 Code de procédure civile de la province de Québec L.R.Q. c. C-25
(jurisdiction of the Court of Appeal for Québec).
United States
• United States Supreme Court – 28 USC §§ 1251-1254.
• United States Court of Appeals – 18 USC § 3731; 28 USC §§ 1291-1292.
In Canada, a statute conferring a right of appeal may also specify the scope of appellate
intervention vested a court of appeal. Sec. 686 of the Criminal Code is a good illustration; it reads
in relevant part:
Powers of the Court of Appeal
686 (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to
stand trial or not criminally responsible on account of mental disorder, the court of appeal
(a) may allow the appeal where it is of the opinion that
(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the
evidence,
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of
law, or
(iii) on any ground there was a miscarriage of justice;
(b) may dismiss the appeal where
(i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part
of the indictment, was properly convicted on another count or part of the indictment,

 

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(ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a),
(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii)
the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or
miscarriage of justice has occurred, or
(iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of
offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant
suffered no prejudice thereby;
(c) may refuse to allow the appeal where it is of the opinion that the trial court arrived at a wrong
conclusion respecting the effect of a special verdict, may order the conclusion to be recorded that appears
to the court to be required by the verdict and may pass a sentence that is warranted in law in substitution
for the sentence passed by the trial court; or
(d) may set aside a conviction and find the appellant unfit to stand trial or not criminally responsible on
account of mental disorder and may exercise any of the powers of the trial court conferred by or referred
to in section 672.45 in any manner deemed appropriate to the court of appeal in the circumstances.
(e) [Repealed, 1991, c. 43, s. 9]
(2) Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and
(a) direct a judgment or verdict of acquittal to be entered; or
(b) order a new trial
(3) Where a court of appeal dismisses an appeal under subparagraph (1)(b)(i), it may substitute the verdict
that in its opinion should have been found and
(a) affirm the sentence passed by the trial court; or
(b) impose a sentence that is warranted in law or remit the matter to the trial court and direct the trial court
to impose a sentence that is warranted in law.
(4) If an appeal is from an acquittal or verdict that the appellant or respondent was unfit to stand trial or
not criminally responsible on account of mental disorder, the court of appeal may
(a) dismiss the appeal; or
(b) allow the appeal, set aside the verdict and
(i) order a new trial, or
(ii) except where the verdict is that of a court composed of a judge and jury, enter a verdict of guilty with
respect to the offence of which, in its opinion, the accused should have been found guilty but for the error
in law, and pass a sentence that is warranted in law, or remit the matter to the trial court and direct the trial
court to impose a sentence that is warranted in law.

 

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Likewise, in the United States, Federal Rule of Civil Procedure 52 (a) (6) outlines, though
less comprehensively than above, the scope of review of United States courts of appeals in civil
matters:
Rule 52 – Findings and Conclusions by the Court; Judgment on Partial Findings
(a) Findings and Conclusions.
(6) Setting Aside the Findings. Findings of fact, whether based on oral or other evidence, must not be set
aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s
opportunity to judge the witnesses’ credibility.
Once established that a statutory provision provides a right of appeal, then move on to step
number two: standard of review.
II. STANDARD OF REVIEW
As mentioned previously, there is a clear distinction between a trial and an appeal: “[W]hile
the primary role of trial courts is to resolve individual disputes based on the facts before them and
settled law, the primary role of appellate courts is to delineate and refine legal rules and ensure their
universal application.” Housen v. Nikolaisen, [2002] 2 S.C.R. 235 ¶ 9 (Iacobucci and Major JJ.).
Moreover, “appellate courts are not in a favourable position to assess and determine factual matters.
Appellate court judges are restricted to reviewing written transcripts of testimony. As well, appeals
are unsuited to reviewing voluminous amounts of evidence. Finally, appeals are telescopic in nature,
focusing narrowly on particular issues as opposed to viewing the case as a whole.” [underline
omitted] id. ¶ 14.
A standard of review determines the scope of appellate intervention. There are two standards
of review on appeal: (1) “standard of correctness” (Canada) – de novo (United States); (2) “palpable
and overriding error” (Canada) – “clear error” (United States). The correctness or de novo standard
applies to error of law; the overriding and palpable error or clear error standard applies to a factual
finding.
A. Review under correctness or de novo standard
In Canada, the Supreme Court defined error of law: “Where, for instance, an error with
respect to a finding of negligence can be attributed to the application of an incorrect standard, a
failure to consider a required element of a legal test, or similar error in principle, such an error can
be characterized as an error of law, subject to a standard of correctness”. Housen ¶ 36. Thus, a trial

 

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judge commits error of law when he or she: (1) assesses the evidence using a wrong legal standard
(or gives erroneous directions to the jury as to applicable law); or (2) identify the appropriate legal
standard but fails to apply it in assessing the evidence. Error of law also occurs should the “trial
judge forgot, ignored or misapprehended the evidence”. Housen ¶ 46. Moreover, in Canada, a trial
judge sitting in a court of criminal jurisdiction commits error of law if he or she provides insufficient
reasons. Insufficient reasoning becomes error of law if “ an appellate court [considers] itself unable
to exercise appellate review in a meaningful way.” R. v. Sheppard, [2002] 1 S.C.R. 869 ¶ 28 (Binnie
J.).
A legal standard is a rule of “universal application”, Housen ¶ 9, enunciated by a court of
appeal or the court of last resort (Supreme court). In other words, it is a precedent or “rule of law”.
The rule of law is meant to guarantee equal treatment under the law. Sriskandarajah v. United States
of America, [2012] 3 S.C.R. 609 ¶ 18 (Karakatsanis J.) (“The rule of precedent, or stare decisis,
promotes predictability, reduces arbitrariness, and enhances fairness, by treating like cases alike.”)
[italics omited]. See also Marbury v. Madison, 5 U.S. 137; 2 L.2d 60; 1803 LEXIS 352 *** 48; 1
Cranch. 137 (“The government of the United States has been emphatically termed a government of
laws, and not of men.It will certainly cease to deserve this high appellation, if the laws furnish no
remedy for the violation of a vested right.”
For example, in Canada par. 186 (1) (b) of the Criminal Code specifically provides that an
application for wiretapping must be supported inter alia by evidence “that other investigative
procedures have been tried and have failed; other investigative procedures are unlikely to succeed”.
In R. v. Araujo, [2000] 2 S.C.R. 992 (Lebel J.) the Supreme Court of Canada held that the so-called
“neccessity requirement” in par. 186 (1) (b) means that the application must state and establish that
there are “no other reasonable alternative method of investigation” left to the police to investigate
a crime, but wiretapping. Araujo ¶ 29.
The rule enunciated by the Supreme Court in Araujo is binding upon all courts of criminal
jurisdiction in Canada. Consequently, if a judge sitting in a court of criminal jurisdiction fails to
review a wiretapping application, pursuant to sec. 186, under the “no other alternative method of
investigation” standard , or “[h]aving stated the test … demonstrably fail[s] to apply it”, R. v. Barros,
[2011] 3 S.C.R. 368 (Binnie J.) ¶ 63, he or she commits error of law. A legal standard is binding

 

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stare decisis; it is final if pronounced by the Supreme Court of Canada or the Supreme Court of the
United States. However, in both Canada and the United States a precedent may be reconsidered, but
only “if there are compelling reasons to do so.” Sriskandarajah ¶ 19 (citing R. v. Henry, 2005 SCC
76, [2005] 3 S.C.R. 609, at para. 44.). Leegin Creative Leather Products, Inc v. PSKS, Inc., 551
U.S. 877, 900 (2007) (Kennedy, J.) (“[T]he boundaries of of the doctrine of per se illegality should
not be immovable.”) [italics in original] (holding vertical price restraint no longer subject to per se
rule of illegality under Section 1 of the Sherman Act).
An appeal court has “broad scope of review with respect to matters of law”. Housen ¶ 9.
When it comes to error of law, “an appellate court is free to replace the opinion of the trial judge
with its own.” Housen ¶ 8. In other words, if a court of appeal comes to the conclusion that a trial
court committed error of law, it owes an inferior court no deference; it must declare that an error of
law has been committed, intervene de novo, and state the correct legal standard that the trial court
should have applied. Courts of appeal intervene mainly on errors of law, consistent with their prime
function “to delineate and refine legal rules and ensure their universal application.” Housen ¶ 9.
B. Review under palpable and overriding error or clear error
A different standard of review governs an appeal on a finding of fact. An erroneous finding
of fact relates to evidence adduced at trial: Witness testimony; inference drawn from facts; forensic
evidence; or documents. “[W]here the issue on appeal involves the trial judge’s interpretation of the
evidence as a whole, it should not be overturned absent palpable and overriding error.” Housen ¶
36. In the United States, a “clearly erroneous” finding of fact warrants appellate intervention.
Federal Rule of Civil Procedure 52 (a) (6). A palpable factual error “is plainly seen”, Housen ¶ 6;
it is an error discernible ex facie. A finding of fact is clearly erroneous if upon review of “the entire
evidence”, an appellate panel has a “ definite and firm conviction that a mistake has been
committed.” Anderson v. Bessemer City, 470 U.S. 564, 573 (1985) (White J.) quoting United States
v. United States Gypsum Co., 333 U.S. 364, 395 (1948).
Keep in mind a very important principle: A court of appeal “is not to decide factual issues
de novo.” 470 U.S. at 573 (quoting Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100,
123 (1969)). A panel of appellate judges must defer to a trial judge’s decision, “[i]f the district
court’s account of the evidence is plausible in light of the record viewed in its entirety” despite “it

 

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would have weighed the evidence differently.” 470 U.S. at 574. Since error of law is subject to a
correctness or de novo standard of review, it represents the best avenue for redress on appeal.
C. Harmless Error
One last important point. A court of appeal may decide a question presented in favor of an
appellant, yet dismiss the appeal. This occurs when despite a trial court’s decision is tainted with
error, it is harmless — so-called “harmless error”. Sub-par. 686 (1) (b) (iii) of the Criminal Code
states that a court of appeal may dismiss an appeal if “of the opinion that … the appeal might be
decided in favour of the appellant, [but] it is of the opinion that no substantial miscarriage of justice
has occurred”. In the United States, federal law (28 U.S.C. § 2111) also contains a provision on
harmless error:
Harmless error
On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an
examination of the record without regard to errors or defects which do not affect the substantial rights of
the parties.
An error is harmless if “there is any reasonable possibility that the verdict would have been
different had the error at issue not been made.” R. v. Charlebois, [2000] 2 S.C.R. 674 ¶ 11
(Bastarache J.) citing R. v. Brooks, [2000] 1 S.C.R. 237. Usually, a trial court commits an harmless
error when admitting or excluding evidence as a result of an error of fact or an error of law. If the
admission or exclusion of the impugned evidence had no incidence on the outcome of the trial
court’s decision (or jury verdict), then it is harmless.
However, error of law in a criminal proceeding is always harmful if the trial court applies
the wrong legal standard to the offense as charged. Such an error of law entails harm perse “because
the verdict is founded on legal error.” Babos ¶ 76. The same is true if an error of law pertains to the
applicable legal standard governing a claim upon which plaintiff seeks relief in a civil action. In
both instances, the Court will grant the appeal, the trial judge having assess the evidence at trial
under the wrong lens, with the result that in incurable injustice unfolded. The law was not applied,
simply.

 

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IV. CHECK LIST
An attorney pondering whether to appeal a trial court’s decision should ask:
1. Whether a statutory provision provides a right of appeal. If so, is the statute providing a right
of appeal as of right or upon permission?
2. Whether the statute providing a right of appeal also gives direction as to the scope of
appellate intervention.
3. Whether to appeal raising error of law (which is subject to a correctness or de novo standard
of review) or error on a finding of fact (which is subject to a palpable and overriding error
or clear error standard of review). If the trial court committed error of law, this avenue
should be pursued.
4. Is the error committed by the trial court harmless?
CONCLUSION
Appellate advocacy is a law practice unto itself. Distinct from trial litigation in style and
substance, appellate litigation requires particular writing and analytical skills. The legal debate on
appeal takes place before a panel of judges hearing oral representations on legal rather than factual
issues. This is why a seasoned trial practitioner should not assume that he or she has the proper
professional background to handle an appeal. The participation of counsel at trial is essential for
preparing an appeal; however, it is preferable to let an appellate counsel write the appellate brief and
make oral representations before a court of appeal.