BASIC PRINCIPLES OF APPELLATE LITIGATION IN CANADA AND THE UNITED
\nSTATES
\nDaniel Martin Bellemare Avocat – Attorney at Law
\nBarreau du Qu\u00e9bec \u2013 Vermont Bar
\nAugust 2021
\nINTRODUCTION
\nThis activity provides attorneys in the Province of Qu\u00e9bec an opportunity to become more
\nfamiliar with and acquire a better understanding of the appeal process in Canada and the United
\nStates. Unlike a trial where a single judge assesses the evidence adduced by the parties (witnesses;
\nmaterial evidence), an appeal concentrates on a trial court\u2019s decision \u2014 mostly a final decision on
\nthe merits. A court of appeal sits in banco, hearing oral representations based on argumentation in
\nan appellate brief. An appeal challenges either an error of law or an erroneous finding of fact. On
\nappeal the court does not retry the case. Now let\u2019s put these basic principles in context.
\nI. APPELLATE LITIGATION: BASICS
\nAppellate review is governed by two basics principles : jurisdiction and standard of review.
\nKeep those two principles in mind, as they are paramount.
\nII. JURISDICTION
\nIn Canada and in the United States constitutional provisions set forth the institutional
\nstructure of the Judiciary:
\nThe Constitution Acts 1867 to 1982 (Canada)
\nVII. Judicature
\nAppointment of Judges
\n96 The Governor General shall appoint the Judges of the Superior, District, and County Courts in each
\nProvince, except those of the Courts of Probate in Nova Scotia and New Brunswick.
\nGeneral Court of Appeal, etc.
\n101 The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for
\nthe Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the
\nEstablishment of any additional Courts for the better Administration of the Laws of Canada.<\/p>\n
<\/p>\n
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\nU.S. Const. Art. III
\nSection 1.
\nThe judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts
\nas the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior
\ncourts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services,
\na compensation, which shall not be diminished during their continuance in office.
\nIn Canada, the Supreme Court of Canada is the court of last resort. A nine-judge panel hears
\nappeals from the Federal Court of Appeal and courts of appeal sitting in the ten provinces and the
\nterritories. The Federal Court of Appeal hears appeal from decisions of the Federal court whereas
\nprovincial courts of appeal hear appeal from provincial trial courts. In the United States, the federal
\ncourt system comprises the Supreme Court, United States court of appeals, and United States district
\ncourts. The Supreme Court of the United States is the court of last resort as to decisions of United
\nStates court of appeals. 28 U.S.C. \u00a7 1254. Like in Canada, a nine-judge panel presides over
\nhearings before the United States\u2019 Supreme Court. State supreme courts\u2019 decisions may also be
\nappealed to the United States\u2019 Supreme Court if the question presented to the Court involves a
\nfederal \u201cground\u201d (e.g. United States Constitution; federal statutes or treaties). 28 U.S.C. \u00a7 1257.
\nAppeal is a statutory right. The short of the matter is: No right of appeal exists, but as
\nprovided by statute. A statute may provide a right of appeal either as of right or upon permission.
\nAppeals to the Supreme Court of Canada are upon permission or leave to appeal, except that an
\nappeal as of right exists in criminal cases if a judge of a court of appeal dissents on an issue of law.
\nPar. 691 (1) a) Criminal Code. This is a departure from standard practice before the Court.
\nAn appeal as of right lies in a final decision of a United States\u2019 district court. 28 U.S.C. \u00a7
\n1291. A limited category of interlocutory decisions may be appealed as of right (e.g. interlocutory
\ninjunction order; order as to receiverships). 28 U.S.C. \u00a7 1292 (a). If a district court states in writing
\nthat an interlocutory order \u201cinvolves a controlling question of law as to which there is substantial
\nground for difference of opinion and that an immediate appeal from the order may materially
\nadvance the ultimate termination of the litigation\u201d, a United States\u2019 court of appeal may in its
\ndiscretion to hear the appeal. 28 U.S.C. \u00a7 1292 (a). An appeal to the United States\u2019 Supreme Court
\nis by way of a writ of certiorari (upon permission), unless the Court has original and\/or exclusive<\/p>\n
<\/p>\n
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\njurisdiction over a case or controversy. 28 U.S.C. \u00a7 1251.
\nThe first step when confronted with an adverse ruling (final or interlocutory) of a trial court
\nis to verify whether a statute provides a right of appeal. Below is a limited list of Canadian and
\nAmerican federal statutes providing a right of appeal:
\nCanada
\n\u2022 Supreme Court Act R.S.C. 1985 c. S-26 (ss. 35-41)
\n\u2022 Federal Court Act R.S.C. 1985 c. F-7 (s. 27).
\n\u2022 Criminal Code R.S.C. 1985 c. C-46 (ss. 686 and 691)
\n\u2022 Sections 29-32 Code de proc\u00e9dure civile de la province de Qu\u00e9bec L.R.Q. c. C-25
\n(jurisdiction of the Court of Appeal for Qu\u00e9bec).
\nUnited States
\n\u2022 United States Supreme Court \u2013 28 USC \u00a7\u00a7 1251-1254.
\n\u2022 United States Court of Appeals \u2013 18 USC \u00a7 3731; 28 USC \u00a7\u00a7 1291-1292.
\nIn Canada, a statute conferring a right of appeal may also specify the scope of appellate
\nintervention vested a court of appeal. Sec. 686 of the Criminal Code is a good illustration; it reads
\nin relevant part:
\nPowers of the Court of Appeal
\n686 (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to
\nstand trial or not criminally responsible on account of mental disorder, the court of appeal
\n(a) may allow the appeal where it is of the opinion that
\n(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the
\nevidence,
\n(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of
\nlaw, or
\n(iii) on any ground there was a miscarriage of justice;
\n(b) may dismiss the appeal where
\n(i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part
\nof the indictment, was properly convicted on another count or part of the indictment,<\/p>\n
<\/p>\n
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\n(ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a),
\n(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii)
\nthe appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or
\nmiscarriage of justice has occurred, or
\n(iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of
\noffence of which the appellant was convicted and the court of appeal is of the opinion that the appellant
\nsuffered no prejudice thereby;
\n(c) may refuse to allow the appeal where it is of the opinion that the trial court arrived at a wrong
\nconclusion respecting the effect of a special verdict, may order the conclusion to be recorded that appears
\nto the court to be required by the verdict and may pass a sentence that is warranted in law in substitution
\nfor the sentence passed by the trial court; or
\n(d) may set aside a conviction and find the appellant unfit to stand trial or not criminally responsible on
\naccount of mental disorder and may exercise any of the powers of the trial court conferred by or referred
\nto in section 672.45 in any manner deemed appropriate to the court of appeal in the circumstances.
\n(e) [Repealed, 1991, c. 43, s. 9]
\n(2) Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and
\n(a) direct a judgment or verdict of acquittal to be entered; or
\n(b) order a new trial
\n(3) Where a court of appeal dismisses an appeal under subparagraph (1)(b)(i), it may substitute the verdict
\nthat in its opinion should have been found and
\n(a) affirm the sentence passed by the trial court; or
\n(b) impose a sentence that is warranted in law or remit the matter to the trial court and direct the trial court
\nto impose a sentence that is warranted in law.
\n(4) If an appeal is from an acquittal or verdict that the appellant or respondent was unfit to stand trial or
\nnot criminally responsible on account of mental disorder, the court of appeal may
\n(a) dismiss the appeal; or
\n(b) allow the appeal, set aside the verdict and
\n(i) order a new trial, or
\n(ii) except where the verdict is that of a court composed of a judge and jury, enter a verdict of guilty with
\nrespect to the offence of which, in its opinion, the accused should have been found guilty but for the error
\nin law, and pass a sentence that is warranted in law, or remit the matter to the trial court and direct the trial
\ncourt to impose a sentence that is warranted in law.<\/p>\n
<\/p>\n
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\nLikewise, in the United States, Federal Rule of Civil Procedure 52 (a) (6) outlines, though
\nless comprehensively than above, the scope of review of United States courts of appeals in civil
\nmatters:
\nRule 52 \u2013 Findings and Conclusions by the Court; Judgment on Partial Findings
\n(a) Findings and Conclusions.
\n(6) Setting Aside the Findings. Findings of fact, whether based on oral or other evidence, must not be set
\naside unless clearly erroneous, and the reviewing court must give due regard to the trial court\u2019s
\nopportunity to judge the witnesses\u2019 credibility.
\nOnce established that a statutory provision provides a right of appeal, then move on to step
\nnumber two: standard of review.
\nII. STANDARD OF REVIEW
\nAs mentioned previously, there is a clear distinction between a trial and an appeal: \u201c[W]hile
\nthe primary role of trial courts is to resolve individual disputes based on the facts before them and
\nsettled law, the primary role of appellate courts is to delineate and refine legal rules and ensure their
\nuniversal application.\u201d Housen v. Nikolaisen, [2002] 2 S.C.R. 235 \u00b6 9 (Iacobucci and Major JJ.).
\nMoreover, \u201cappellate courts are not in a favourable position to assess and determine factual matters.
\nAppellate court judges are restricted to reviewing written transcripts of testimony. As well, appeals
\nare unsuited to reviewing voluminous amounts of evidence. Finally, appeals are telescopic in nature,
\nfocusing narrowly on particular issues as opposed to viewing the case as a whole.\u201d [underline
\nomitted] id. \u00b6 14.
\nA standard of review determines the scope of appellate intervention. There are two standards
\nof review on appeal: (1) \u201cstandard of correctness\u201d (Canada) \u2013 de novo (United States); (2) \u201cpalpable
\nand overriding error\u201d (Canada) \u2013 \u201cclear error\u201d (United States). The correctness or de novo standard
\napplies to error of law; the overriding and palpable error or clear error standard applies to a factual
\nfinding.
\nA. Review under correctness or de novo standard
\nIn Canada, the Supreme Court defined error of law: \u201cWhere, for instance, an error with
\nrespect to a finding of negligence can be attributed to the application of an incorrect standard, a
\nfailure to consider a required element of a legal test, or similar error in principle, such an error can
\nbe characterized as an error of law, subject to a standard of correctness\u201d. Housen \u00b6 36. Thus, a trial<\/p>\n
<\/p>\n
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\njudge commits error of law when he or she: (1) assesses the evidence using a wrong legal standard
\n(or gives erroneous directions to the jury as to applicable law); or (2) identify the appropriate legal
\nstandard but fails to apply it in assessing the evidence. Error of law also occurs should the \u201ctrial
\njudge forgot, ignored or misapprehended the evidence\u201d. Housen \u00b6 46. Moreover, in Canada, a trial
\njudge sitting in a court of criminal jurisdiction commits error of law if he or she provides insufficient
\nreasons. Insufficient reasoning becomes error of law if \u201c an appellate court [considers] itself unable
\nto exercise appellate review in a meaningful way.\u201d R. v. Sheppard, [2002] 1 S.C.R. 869 \u00b6 28 (Binnie
\nJ.).
\nA legal standard is a rule of \u201cuniversal application\u201d, Housen \u00b6 9, enunciated by a court of
\nappeal or the court of last resort (Supreme court). In other words, it is a precedent or \u201crule of law\u201d.
\nThe rule of law is meant to guarantee equal treatment under the law. Sriskandarajah v. United States
\nof America, [2012] 3 S.C.R. 609 \u00b6 18 (Karakatsanis J.) (\u201cThe rule of precedent, or stare decisis,
\npromotes predictability, reduces arbitrariness, and enhances fairness, by treating like cases alike.\u201d)
\n[italics omited]. See also Marbury v. Madison, 5 U.S. 137; 2 L.2d 60; 1803 LEXIS 352 *** 48; 1
\nCranch. 137 (\u201cThe government of the United States has been emphatically termed a government of
\nlaws, and not of men.It will certainly cease to deserve this high appellation, if the laws furnish no
\nremedy for the violation of a vested right.\u201d
\nFor example, in Canada par. 186 (1) (b) of the Criminal Code specifically provides that an
\napplication for wiretapping must be supported inter alia by evidence \u201cthat other investigative
\nprocedures have been tried and have failed; other investigative procedures are unlikely to succeed\u201d.
\nIn R. v. Araujo, [2000] 2 S.C.R. 992 (Lebel J.) the Supreme Court of Canada held that the so-called
\n\u201cneccessity requirement\u201d in par. 186 (1) (b) means that the application must state and establish that
\nthere are \u201cno other reasonable alternative method of investigation\u201d left to the police to investigate
\na crime, but wiretapping. Araujo \u00b6 29.
\nThe rule enunciated by the Supreme Court in Araujo is binding upon all courts of criminal
\njurisdiction in Canada. Consequently, if a judge sitting in a court of criminal jurisdiction fails to
\nreview a wiretapping application, pursuant to sec. 186, under the \u201cno other alternative method of
\ninvestigation\u201d standard , or \u201c[h]aving stated the test … demonstrably fail[s] to apply it\u201d, R. v. Barros,
\n[2011] 3 S.C.R. 368 (Binnie J.) \u00b6 63, he or she commits error of law. A legal standard is binding<\/p>\n
<\/p>\n
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\nstare decisis; it is final if pronounced by the Supreme Court of Canada or the Supreme Court of the
\nUnited States. However, in both Canada and the United States a precedent may be reconsidered, but
\nonly \u201cif there are compelling reasons to do so.\u201d Sriskandarajah \u00b6 19 (citing R. v. Henry, 2005 SCC
\n76, [2005] 3 S.C.R. 609, at para. 44.). Leegin Creative Leather Products, Inc v. PSKS, Inc., 551
\nU.S. 877, 900 (2007) (Kennedy, J.) (\u201c[T]he boundaries of of the doctrine of per se illegality should
\nnot be immovable.\u201d) [italics in original] (holding vertical price restraint no longer subject to per se
\nrule of illegality under Section 1 of the Sherman Act).
\nAn appeal court has \u201cbroad scope of review with respect to matters of law\u201d. Housen \u00b6 9.
\nWhen it comes to error of law, \u201can appellate court is free to replace the opinion of the trial judge
\nwith its own.\u201d Housen \u00b6 8. In other words, if a court of appeal comes to the conclusion that a trial
\ncourt committed error of law, it owes an inferior court no deference; it must declare that an error of
\nlaw has been committed, intervene de novo, and state the correct legal standard that the trial court
\nshould have applied. Courts of appeal intervene mainly on errors of law, consistent with their prime
\nfunction \u201cto delineate and refine legal rules and ensure their universal application.\u201d Housen \u00b6 9.
\nB. Review under palpable and overriding error or clear error
\nA different standard of review governs an appeal on a finding of fact. An erroneous finding
\nof fact relates to evidence adduced at trial: Witness testimony; inference drawn from facts; forensic
\nevidence; or documents. \u201c[W]here the issue on appeal involves the trial judge\u2019s interpretation of the
\nevidence as a whole, it should not be overturned absent palpable and overriding error.\u201d Housen \u00b6
\n36. In the United States, a \u201cclearly erroneous\u201d finding of fact warrants appellate intervention.
\nFederal Rule of Civil Procedure 52 (a) (6). A palpable factual error \u201cis plainly seen\u201d, Housen \u00b6 6;
\nit is an error discernible ex facie. A finding of fact is clearly erroneous if upon review of \u201cthe entire
\nevidence\u201d, an appellate panel has a \u201c definite and firm conviction that a mistake has been
\ncommitted.\u201d Anderson v. Bessemer City, 470 U.S. 564, 573 (1985) (White J.) quoting United States
\nv. United States Gypsum Co., 333 U.S. 364, 395 (1948).
\nKeep in mind a very important principle: A court of appeal \u201cis not to decide factual issues
\nde novo.\u201d 470 U.S. at 573 (quoting Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100,
\n123 (1969)). A panel of appellate judges must defer to a trial judge\u2019s decision, \u201c[i]f the district
\ncourt\u2019s account of the evidence is plausible in light of the record viewed in its entirety\u201d despite \u201cit<\/p>\n
<\/p>\n
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\nwould have weighed the evidence differently.\u201d 470 U.S. at 574. Since error of law is subject to a
\ncorrectness or de novo standard of review, it represents the best avenue for redress on appeal.
\nC. Harmless Error
\nOne last important point. A court of appeal may decide a question presented in favor of an
\nappellant, yet dismiss the appeal. This occurs when despite a trial court\u2019s decision is tainted with
\nerror, it is harmless \u2014 so-called \u201charmless error\u201d. Sub-par. 686 (1) (b) (iii) of the Criminal Code
\nstates that a court of appeal may dismiss an appeal if \u201cof the opinion that … the appeal might be
\ndecided in favour of the appellant, [but] it is of the opinion that no substantial miscarriage of justice
\nhas occurred\u201d. In the United States, federal law (28 U.S.C. \u00a7 2111) also contains a provision on
\nharmless error:
\nHarmless error
\nOn the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an
\nexamination of the record without regard to errors or defects which do not affect the substantial rights of
\nthe parties.
\nAn error is harmless if \u201cthere is any reasonable possibility that the verdict would have been
\ndifferent had the error at issue not been made.\u201d R. v. Charlebois, [2000] 2 S.C.R. 674 \u00b6 11
\n(Bastarache J.) citing R. v. Brooks, [2000] 1 S.C.R. 237. Usually, a trial court commits an harmless
\nerror when admitting or excluding evidence as a result of an error of fact or an error of law. If the
\nadmission or exclusion of the impugned evidence had no incidence on the outcome of the trial
\ncourt\u2019s decision (or jury verdict), then it is harmless.
\nHowever, error of law in a criminal proceeding is always harmful if the trial court applies
\nthe wrong legal standard to the offense as charged. Such an error of law entails harm perse \u201cbecause
\nthe verdict is founded on legal error.\u201d Babos \u00b6 76. The same is true if an error of law pertains to the
\napplicable legal standard governing a claim upon which plaintiff seeks relief in a civil action. In
\nboth instances, the Court will grant the appeal, the trial judge having assess the evidence at trial
\nunder the wrong lens, with the result that in incurable injustice unfolded. The law was not applied,
\nsimply.<\/p>\n
<\/p>\n
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\nIV. CHECK LIST
\nAn attorney pondering whether to appeal a trial court\u2019s decision should ask:
\n1. Whether a statutory provision provides a right of appeal. If so, is the statute providing a right
\nof appeal as of right or upon permission?
\n2. Whether the statute providing a right of appeal also gives direction as to the scope of
\nappellate intervention.
\n3. Whether to appeal raising error of law (which is subject to a correctness or de novo standard
\nof review) or error on a finding of fact (which is subject to a palpable and overriding error
\nor clear error standard of review). If the trial court committed error of law, this avenue
\nshould be pursued.
\n4. Is the error committed by the trial court harmless?
\nCONCLUSION
\nAppellate advocacy is a law practice unto itself. Distinct from trial litigation in style and
\nsubstance, appellate litigation requires particular writing and analytical skills. The legal debate on
\nappeal takes place before a panel of judges hearing oral representations on legal rather than factual
\nissues. This is why a seasoned trial practitioner should not assume that he or she has the proper
\nprofessional background to handle an appeal. The participation of counsel at trial is essential for
\npreparing an appeal; however, it is preferable to let an appellate counsel write the appellate brief and
\nmake oral representations before a court of appeal.<\/p>\n","protected":false},"excerpt":{"rendered":"
BASIC PRINCIPLES OF APPELLATE LITIGATION IN CANADA AND THE UNITED STATES Daniel Martin Bellemare Avocat – Attorney at Law Barreau du Qu\u00e9bec \u2013 Vermont Bar August 2021 INTRODUCTION This activity provides attorneys in the Province of Qu\u00e9bec an opportunity to…<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[29],"tags":[],"class_list":["post-1209","post","type-post","status-publish","format-standard","hentry","category-legal-chronicles"],"_links":{"self":[{"href":"https:\/\/votredefense.com\/en\/wp-json\/wp\/v2\/posts\/1209","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/votredefense.com\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/votredefense.com\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/votredefense.com\/en\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/votredefense.com\/en\/wp-json\/wp\/v2\/comments?post=1209"}],"version-history":[{"count":2,"href":"https:\/\/votredefense.com\/en\/wp-json\/wp\/v2\/posts\/1209\/revisions"}],"predecessor-version":[{"id":1211,"href":"https:\/\/votredefense.com\/en\/wp-json\/wp\/v2\/posts\/1209\/revisions\/1211"}],"wp:attachment":[{"href":"https:\/\/votredefense.com\/en\/wp-json\/wp\/v2\/media?parent=1209"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/votredefense.com\/en\/wp-json\/wp\/v2\/categories?post=1209"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/votredefense.com\/en\/wp-json\/wp\/v2\/tags?post=1209"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}