INTRODUCTION AND BRIEF DESCRIPTION
The court of appeal can dismiss an appeal if it does not meet certain criteria or if no substantial wrong or miscarriage of justice has occurred.
SECTION WORDING
672.78(2) The court of appeal may dismiss an appeal against a disposition or placement decision where the court is of the opinion (a) that paragraphs (1)(a), (b) and (c) do not apply; or (b) that paragraph (1)(b) may apply, but the court finds that no substantial wrong or miscarriage of justice has occurred.
EXPLANATION
Section 672.78(2) of the Criminal Code of Canada outlines the circumstances under which a court of appeal may dismiss an appeal against a disposition or placement decision. This section applies to cases where a sentencing judge has made a decision about the appropriate sentence for an offender, including whether they should be placed in custody or not. Under subsection (1) of this section, an appeal may be dismissed if the court is of the opinion that the sentence was fit, the sentence was not illegal or the sentence was not inappropriate. However, if the court finds that any of these circumstances do apply, then the appeal may proceed. Under subsection (2), the court of appeal may also dismiss an appeal if it finds that no substantial wrong or miscarriage of justice has occurred, even if one of the circumstances listed in subsection (1) applies. Essentially, this means that the court of appeal has the power to exercise discretion and dismiss an appeal if it feels that the outcome of the trial was not significantly impacted by any errors or flaws in the sentencing process. Overall, Section 672.78(2) serves to provide guidance to the court of appeal and help ensure consistency and fairness in the sentencing process. It helps to strike a balance between correcting errors or injustices while also recognizing the need for finality and certainty in criminal proceedings.
COMMENTARY
Section 672.78(2) of the Criminal Code of Canada deals with the appeal process for dispositions or placement decisions made in criminal cases. This section outlines two scenarios in which the Court of Appeal may dismiss an appeal. The first scenario is when the circumstances outlined in paragraphs (1)(a), (b), and (c) do not apply, and the second is when paragraph (1)(b) may apply but the court determines that no substantial wrong or miscarriage of justice has occurred. Paragraphs (1)(a), (b), and (c) of section 672.78 outline the circumstances under which an appeal may be pursued. Paragraph (1)(a) allows for an appeal if there was an error in law, fact or jurisdiction in the decision being appealed. Paragraph (1)(b) allows for an appeal if the decision was made with an unreasonable finding of fact or if the sentence imposed was unreasonable or demonstrably unfit. Finally, paragraph (1)(c) allows for an appeal if there was a breach of procedural fairness. If none of these circumstances apply, the Court of Appeal may dismiss the appeal under paragraph (2)(a). This is a matter of judgment on the part of the court, as it must determine that the appellant is not entitled to appeal on any of the grounds outlined in paragraphs (1)(a), (b), and (c) before dismissing the appeal. In the second scenario outlined in section 672.78(2), the Court of Appeal may dismiss an appeal even if paragraph (1)(b) may apply, but the court determines that no substantial wrong or miscarriage of justice has occurred. This is an important safeguard against frivolous appeals or appeals that do not consider the overall interests of justice. The provision is an important tool for the Court of Appeal to ensure that appeals are brought only in circumstances where there has been a substantive error or miscarriage of justice. At the same time, it also provides an important check on the power of lower courts in making dispositions or placement decisions. It ensures that the Courts of Appeal do not second guess every decision made in lower courts. Instead, they step in only when there has been a serious error of law or fact, or a substantive miscarriage of justice. Overall, section 672.78(2) of the Criminal Code of Canada is a provision that is intended to strike a balance between ensuring that justice is done and protecting the integrity of lower court decisions. It is a provision that provides flexibility for the Court of Appeal to determine the appropriate course of action in each case, and it helps to ensure that the justice system remains fair, efficient and effective.
STRATEGY
Section 672.78(2) of the Criminal Code of Canada provides for the dismissal of an appeal against a disposition or placement decision, subject to certain conditions. Some strategic considerations when dealing with this section of the Criminal Code include the need to carefully evaluate the grounds for appeal, the potential implications of the appeal, and the likelihood of success. One important consideration is the need to establish that the grounds for appeal meet the requirements set out in paragraphs (1)(a), (b) and (c) of the section. Under paragraph (1)(a), an appeal may be made on the basis of an error of law, fact or mixed law and fact. Under paragraph (1)(b), an appeal may be made on the basis of a significant breach of the principles of fundamental justice, or a substantial wrong or miscarriage of justice. Under paragraph (1)(c), an appeal may be made on the basis of new evidence that was not available at the time of the original disposition or placement decision. In order to successfully appeal under paragraph (1)(a), it is generally necessary to demonstrate a clear error of law or fact that had a material impact on the decision. This may involve identifying inconsistencies, omissions, or misinterpretations in the original decision. Similarly, to succeed under paragraph (1)(b), it may be necessary to show that the trial judge made a significant error in applying the law or that the decision otherwise constitutes a manifest injustice. Under paragraph (1)(c), the appeal must involve new evidence that could potentially have impacted the original decision, such as scientific or medical evidence that was not previously available. Another important consideration when dealing with Section 672.78(2) is the potential implications of the appeal. This may involve considering the impact on the individual involved, as well as the broader social and legal implications of the appeal. For example, an appeal that results in a reduced sentence or altered placement may have significant consequences for the individual concerned, such as allowing them to be released from custody sooner or providing them with access to more appropriate treatment or support. However, such an appeal may also have broader implications, such as setting a legal precedent that could impact future cases. Finally, when dealing with Section 672.78(2), it is important to consider the likelihood of success and to employ appropriate strategies to maximize the chances of success. This may involve engaging skilled legal counsel, conducting thorough research and preparation, and presenting strong arguments that are supported by relevant case law and evidence. It may also involve engaging in advocacy and outreach to build support for the appeal and to raise awareness of the issues involved. Overall, the strategic considerations when dealing with Section 672.78(2) of the Criminal Code of Canada are complex and multifaceted. By carefully evaluating the grounds for appeal, considering the potential implications, and employing appropriate strategies, those involved in such appeals can maximize their chances of success and ensure that justice is served.