Using 2017 statistics, while only 26% of all Supreme Court of Canada leave (permission) to appeal applications were criminal in nature, a full 43% of appeals heard by the court were criminal. And of appeals where leave is granted by the Court, stats show almost half are successful. What this means is that you’ve got way better than the average 1 in 10 chance of your appeal being heard by the Supremes if it’s a criminal case you’re trying to get them to pay attention to, with your odds in fact being a bit under 1 in 5. That’s not bad for reportedly the busiest national court of last resort in the Commonwealth.
While most criminal defendants in Canada have a right to appeal convictions (and some other orders) at least once to a provincial court of appeal, and sometimes twice if the conviction occurred in a provincial court permitting an intermediary Summary Conviction Appeal to a Superior Court prior to proceeding to the provincial court of appeal, only in a few criminal cases will there be an appeal “as of right” to the SCC. Most of the time you need to ask that Court for permission to hear your case. But because the SCC is clearly prioritizing criminal cases, likely because of the liberty interests at stake, all criminal defendants should have confidence that because of the huge impact on their lives that criminal dispositions may have, a Supreme Court of Canada leave to appeal application can be worth the effort, time and expense.
So regardless of whether you think you’ve been wrongly convicted and deserve a new trial, had an unlawful extradition or other non-conviction criminal order like proceeds of crime forfeiture made against you, or are just disputing your overly harsh sentence which appears to be way outside the acceptable range, you’ve potentially got another kick at the can even if you’ve already lost before the highest court of appeal in your province or territory.
As a lawyer who has appeared on several criminal cases before the Supreme Court of Canada, here are my three tips for successfully seeking leave to appeal your criminal case to the SCC.
Convince the Court it’s About Way More Than Just You - because the SCC is so busy, Parliament decided in passing s. 40 of the Supreme Court Act that only cases which involve a question “by reason of its public importance … or is, for any other reason, of such a nature or significance as to warrant decision by it” will be heard by the Court. In the criminal law world, this means raising significant and novel Canadian Charter of Rights and Freedoms issues, or issues of complex and contradictory statutory interpretation, or issues of fundamental procedural fairness and natural justice that extend far beyond your personal circumstances such that ideally they have national scope, is most likely to engage the SCC in granting you leave to be heard.
Be on Time for Meeting the 60 Day Time Limit - while you might initially think the SCC is being generous by giving you 60 days to bring your leave to appeal application, as compared to the normal 30 days that most provincial courts of appeal provide for filing a notice of appeal, you could be shocked to find out that those 60 days are all you have to totally perfect your application by filing all the voluminous required materials, in exactly the right format required by the Rules. And be certain those Rules can be unique, like printing on the the left (back) sides of each double sided page so that the judges can take notes on the front right (front) sides of each page. No other Court I know of requires that!
Use a SCC Agent - only a lawyer practicing in the National Capital Region is permitted to deal with the SCC on your behalf. So regardless of whether you are self-represented, or using an experienced lawyer to put together your leave application, you aren’t permitted to directly file it with the Court without an agent. It might seem a bit like a rule dating back to horse and buggy days, but in reality the leave application has such unique documentary requirements that an agent can best assist you in ensuring the Court accepts your filing.
Gordon Scott Campbell is author of The Investigator’s Legal Handbook (Carswell/Yvon Blais) series of criminal law books, has served with the Department of Justice Canada and Attorney General of Ontario in preparing or responding to Supreme Court of Canada leave to appeal applications, and now helps private clients as both counsel and agent for SCC work.