Appeals

If you believe that you were wrongfully convicted, if you feel that the sentence imposed at trial was unfair, or if you think there were some judicial errors made at trial, then you have the right to request an appeal.

What is an appeal?

An appeal is not a new trial (although it can result in one). An appeal is a review of the trial decision by a higher court. Through an appeal, you may, for example, argue that based on the transcript of the trial, the trial judge made a legal error or that the verdict was unreasonable.

Both the accused and the Crown are entitled to request an appeal. The party that requests an appeal is called the appellant, whereas the other party is called the respondent.

Purposes of an appeal:

• To protect against prejudicial legal errors and, more broadly, miscarriages of justice;
• To enhance fairness of the process; and
• To maintain confidence in the administration of justice.

Which court will hear my appeal?

The court structure will differ depending on whether you were tried for a summary or indictable offence. If you were tried for a summary offence, then the initial appeal will be brought before a single judge at the Ontario Superior Court of Justice. If you were tried for an indictable offence, then the initial appeal will be brought before a panel of three judges at the Ontario Court of Appeal.

What happens if I already appealed?

The court structure in Canada allows for further appeals after your initial appeal. Both the accused and the Crown can appeal all the way to the Supreme Court of Canada, which is the country’s highest court. Generally, you have the ability to continue to appeal if you are unsuccessful in your first appeal. It is also important to recognize that even if your appeal is successful, there is a chance that the appeal could be overturned later. A lawyer can help you better understand the process.

How long do I have to bring an appeal?

You can start an initial appeal as soon as you have been convicted of a criminal offence. There is, however, a limited time available for you to bring an appeal. From the day that you were sentenced, you have only 30 days to provide notice of your appeal.

In rare cases, you may be allowed to start an appeal after the 30-day deadline. To do so, you would need to ask the court for special permission, so that you may receive an extension.

Keeping these limitation periods in mind, it is important to contact a lawyer as soon as possible if you are thinking of appealing.

On what grounds can I appeal?

Generally, you, as an accused, can appeal your conviction on the basis of a question of law, a question of fact, a question of mixed fact and law, or any ground that the court deems sufficient. You can also appeal the type of sentence imposed, its length, as well as orders and prohibitions accompanying it.

Depending on who is appealing, the court you are appealing to, and the grounds of appeal, there may be an automatic right to appeal or permission may need to be requested for the appeal to be heard (known as “leave to appeal”).

The difference between questions of law and questions of fact, et cetera, can be complex and the distinction is sometimes unclear. A lawyer is in the best position to discuss your opportunity to appeal with you and what grounds are applicable to your situation.

Appeal procedure:

In an appeal, the appellate court simply reviews the trial decision. You are not re-litigating the issues that were dealt with at trial.

All the evidence and testimony that were heard at trial are recorded in a trial transcript and are made available for the appellate court judge(s). The court will also have access to the lower court’s judgment or charge to the jury.

In the vast majority of appeals, new evidence is not introduced. That being said, appellate courts do have a mechanism by which they can receive “fresh” evidence: The evidence must meet a set of criteria. Typically, this evidence will be accepted if it was not available at trial, if it is relevant, if it is credible, and if it could have affected the verdict. A lawyer can review your case and consider whether adducing “fresh” evidence would be appropriate in light of this criteria. Furthermore, they can dig deeper and try to obtain new evidence themselves.

The appeal hearing itself will be very different from what you experienced during the trial. The court will be focused on the written and oral arguments that counsel make, and the court will ask questions based on these submissions. In most cases, the accused is not present in the courtroom during the appeal.

Results of an appeal:

At the end of the appeal hearing, the appellate court can do one of the following:

• Dismiss the appeal (which means the original verdict or sentence stands);
• Order a new trial (which means that the case will go back to the lower court, and you will have a completely new trial);
• Change the verdict (which means that the court can enter an acquittal or reverse one); or
• Change the sentence imposed at trial (which means that the nature and the length of the sentence can be altered).

Can I get bail while my case is being appealed?

If you were convicted at trial and were sentenced to a period of incarceration, you will remain in custody until your appeal decision is made—unless you can secure bail. After filing a notice of appeal, you can ask for a bail hearing pending appeal.

In order to be released on bail, you would need to show that:

• Your appeal is not frivolous, in that there is a valid point to your appeal or there is some sort of merit to it;
• Your detention is not necessary in the public interest; and
• You will not be a flight risk, and you will surrender into custody.

If the court ultimately orders a new trial, you may also be released on bail pending a new trial.

Obtaining a release can be a difficult and arduous process. Having a lawyer by your side cannot only help you win your appeal, they can also assist you in getting bail in a timely manner.

Defending against a Crown appeal:

Just as you as the accused have the right to request an appeal, the Crown too has the same right—although it is more limited. For indictable offences, the Crown can appeal an acquittal on a question of law alone as well as a sentence. The Crown has more opportunity to appeal for summary convictions. If the Crown decides to appeal your case, you will receive a notice of appeal, which will outline the grounds for their appeal.

It is important to note that the Crown also has the ability to cross-appeal, which means that it can raise its own issues in an appeal initiated by you. You also have the same right for appeals initiated by the Crown. Appeals can get complicated, and a lawyer can assist you in building strong appellate arguments and countering arguments raised by the Crown.

It’s vital to hire a criminal appeal lawyer

Appeals can be quite lengthy and nuanced. A lawyer can:

• Help you get bail while you wait for the appeal decision;
• Take care of the procedural aspects of the appeal and ensure you meet the 30-day filing deadline;
• Review your case, including trial transcripts that are sometimes hundreds of pages long, to determine the best way to win the appeal;
• Prepare written and oral submissions for the court, which require someone who is both a skilled legal writer and advocate;
• Make sure you understand the entire process, by effectively advising you on the procedural and substantive aspects of the appeal and possible outcomes.

We have provided general information about how appeals are handled. Hiring a lawyer provides your best chance at mounting a successful appeal. For more information about how we can help, please contact our team.