Powers of the Court of Appeal

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POWERS OF THE COURT
OF APPEAL



687. (1) Powers of court on appeal against sentence - Where an appeal is taken against sentence, the court of appeal 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 to receive,
(a)	vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or
(b)	dismiss the appeal.
(2) Effect of judgment - A judgment of a court of appeal that varies the sentence of an accused who was convicted has the same force and effect as if it were a sentence passed by the trial court.
R.S., c. C-34, s. 614.

*Judicial Consideration* -

Blaylock v The Queen - Unreported, April 22, 1985, No. T-761-85 (FCTD)
	- Where a prisoner was sentenced to six months consecutive for an escape and the sentence was varied on appeal to a sentence of three months, it was held that the Court of Appeal, in varying the sentence, had not varied the consecutive aspect of the sentence. The Court of Appeal varied the sentence pursuant to s614 of the Code and did so only in regards to the quantum or number of months to be served. Nothing else was purported to be effected. Consequently, the sentence passed by the trial court remained as varied. To vary the consecutive aspect, the Court of Appeal would have had to so order specifically and not really implicitly.

688. (1) Right of appellant to attend - Subject to subsection (2), an appellant who is in custody is entitled, if he desires, to be present at the hearing of the appeal.
(2) Appellant represented by counsel - An appellant who is in custody and who is represented by counsel is not entitled to be present
(a)	at the hearing of the appeal, where the appeal is on a ground involving a question of law alone,
(b)	on an application for leave to appeal, or
(c)	on any proceedings that are preliminary or incidental to an appeal,
unless rules of court provide that he is entitled to be present or the court of appeal or a judge thereof gives him leave to be present.
(3) Argument may be oral or in writing - An appellant may present his case on appeal and his argument in writing instead of orally, and the court of appeal shall consider any case of argument so presented.
(4) Sentence in absence of appellant - A court of appeal may exercise its power to impose sentence notwithstanding that the appellant is not present.
R.S., c. C-34, s. 615.

*Judicial Consideration* -

R v Walford - (1983) 5 CCC (3d) 544 (BCCA)
	- Neither this section, nor the terms of the Charter, nor the inherent jurisdiction of the court require or justify the making of an order that an accused who has a right of appeal under s603(1.1) of the Code remain in the province until she is able to instruct and retain counsel for the purposes of that appeal in order to preclude the appellant's transfer from a prison within the province to a prison outside of the province. Such a matter should be dealt with under s16(2) of the Penitentiary Act.



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