Academic journal article Journal of Appellate Practice and Process

Comparing "Appels" and Oranges: Evaluating the Link between Appeal Processes and Judiciary Structures in Canada and France

Academic journal article Journal of Appellate Practice and Process

Comparing "Appels" and Oranges: Evaluating the Link between Appeal Processes and Judiciary Structures in Canada and France

Article excerpt


In this essay, I will attempt to explain why criminal appeal processes in France and Canada are so fundamentally different. At first glance, this is a simple question, with an obvious answer. Sometimes, however, obvious answers to simple questions can lead the academically minded among us onto long journeys of inquiry, in our efforts to uncover, beyond the obvious, why things exist or are done in a certain way.

By way of example, consider that "[a]ppeals ... are not a logical corollary of the exercise of judgment." (1) Indeed, as Dean Jurtas has pointed out,

   there is nothing inherent in the notion of decision-making
   which requires that every decision be reviewable by a
   second decision-maker. From the perspective of
   institutional design, the possibility of appeals--that is, the
   possibility of having a second person decide on the same
   issue after an original decision has been made--and the
   scope of appeals are matters of choice. (2)

In other words, the simple question "Why do appeals exist at all, or in given form?" can be answered with the obvious statement "For different reasons that we have, institutionally, settled upon." One cannot argue with this conclusion; it is undoubtedly true. But from a scholarly perspective, it is also somewhat unsatisfying: It leaves us wondering, again and again, why? Why has a particular form of appellate law developed in a given jurisdiction? What logic underlies the choices that have been made in adopting a certain mechanism for appeals?

This type of probing intellectual inquiry is perhaps most common among comparative law scholars, who, by the nature of their work, must often confront and account for differences in laws across jurisdictions. Thus, when a comparative law scholar asks why Canada and France have such markedly different criminal appeal processes, that scholar will not likely accept the obvious response that the laws enabling appeals in each jurisdiction provide for different forms of appeal. The truth of that obvious assertion does not ensure its sufficiency as a response to the question that was originally asked.

My goal in this essay, therefore, is to probe beyond the superficial in order to ascertain why criminal appeals in Canada and France exist in such distinctly different forms. The first part of the ensuing discussion will briefly review some of the theory explaining, generally, why appeals exist within legal systems. In Part III, the law dealing with criminal appeals in Canada and France will be summarized. Next, in Part IV, the Canadian and French criminal judiciaries will be described. Finally, in Part V, I will attempt to demonstrate that a link exists between the design of the appellate processes and the design of the institutions of the judiciary in both Canada and France. Ultimately, I will argue that criminal appeals in Canada and France are different because the two jurisdictions train, educate, and view the abilities of judges in very different ways, and because each appeal system is therefore built around distinct assumptions about the capacities of judges to perform their functions at trial and on appeal.


As I have already suggested, the decision to permit criminal appeals in one form or another is, at least in Canada and France, a matter of legislative choice. It is important to understand, however, that there may be valid reasons to restrict or withhold a right to appeal, as much as there may be reasons to grant such a right. For instance, one could argue that, in order to "promote the autonomy and integrity of proceedings" (3) at the trial level, there should not be recourse to an appellate court for a decision on the same matter. After all, if parties to a proceeding know that any trial decision is subject to appeal, then there is a danger that they will treat the trial as a sort of dress rehearsal for the appeal that may inevitably follow, which would tend to undermine the authority of the trial court. …

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