Criminal Code — C-46 822
Certain sections applicable to appeals 822 (1) Where an appeal is taken under section 813 in respect of any conviction, acquittal, sentence, verdict or order, sections 683 to 689, with the exception of subsections 683(3) and 686(5), apply, with such modifications as the circumstances require. New trial (2) Where an appeal court orders a new trial, it shall be held before a summary conviction court other than the court that tried the defendant in the first instance, unless the appeal court directs that the new trial be held before the summary conviction court that tried the accused in the first instance. Order of detention or release (3) Where an appeal court orders a new trial, it may make such order for the release or detention of the appellant pending the trial as may be made by a justice pursuant to section 515 and the order may be enforced in the same manner as if it had been made by a justice under that section, and the provisions of Part XVI apply with such modifications as the circumstances require to the order. Trial de novo (4) Despite subsections (1) to (3), if an appeal is taken under section 813 and because of the condition of the record of the trial in the summary conviction court or for any other reason, the appeal court, on application of the defendant, the informant, the Attorney General or the Attorney General’s agent, is of the opinion that the interests of justice would be better served by hearing and determining the appeal by holding a trial de novo , the appeal court may order that the appeal shall be heard by way of trial de novo in accordance with any rules that may be made under section 482 or 482.1, and for that purpose the provisions of sections 793 to 809 apply, with any modifications that the circumstances require. Former evidence (5) The appeal court may, for the purpose of hearing and determining an appeal under subsection (4), permit the evidence of any witness taken before the summary conviction court to be read if that evidence has been authenticated in accordance with section 540 and if (a) the appellant and respondent consent, (b) the appeal court is satisfied that the attendance of the witness cannot reasonably be obtained, or (c) by reason of the formal nature of the evidence or otherwise the court is satisfied that the opposite party will not be prejudiced, and any evidence that is read under the authority of this subsection has the same force and effect as if the witness had given the evidence before the appeal court. Appeal against sentence (6) Where an appeal is taken under subsection (4) against sentence, the appeal court shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against and may, on such evidence, if any, as it thinks fit to require or receive, by order, (a) dismiss the appeal, or (b) vary the sentence within the limits prescribed by law for the offence of which the defendant was convicted, and in making any order under paragraph (b), the appeal court may take into account any time spent in custody by the defendant as a result of the offence. General provisions re appeals (7) The following provisions apply in respect of appeals under subsection (4): (a) where an appeal is based on an objection to an information or any process, judgment shall not be given in favour of the appellant (i) for any alleged defect therein in substance or in form, or (ii) for any variance between the information or process and the evidence adduced at the trial, unless it is shown (iii) that the objection was taken at the trial, and (iv) that an adjournment of the trial was refused notwithstanding that the variance referred to in subparagraph (ii) had deceived or misled the appellant; and (b) where an appeal is based on a defect in a conviction or an order, judgment shall not be given in favour of the appellant, but the court shall make an order curing the defect. R.S., 1985, c. C-46, s. 822; 1991, c. 43, s. 9; 2002, c. 13, s. 83