Conducting a Criminal Appeal
Sometimes, things do not go the way you had hoped they would in a criminal trial. You may be wanting another set of eyes to take a look at your case, which means that you may be considering an appeal. Read on to learn the basics of the criminal appeal process in Canada.
What is an Appeal?
In Canada, any person convicted (found guilty) of a crime may apply to have a higher court take another look at the decision. This process is called an appeal. Several courts can deal with a criminal appeal, depending on the nature of that appeal, however for more serious offences like murder, appeals are brought to the Court of Appeal for Ontario, which normally sits at Osgoode Hall in Toronto. An appealing party is known as an “appellant” while the party responding to the appeal is the “respondent”.
How does the Appeal Process work?
The trial judge will look to see if there were any significant errors made during the trial or anything which was overlooked. They may also look at the events of the trial and consider whether the evidence presented was sufficient to convict the defendant.
The appeal of a sentence: If the defendant wishes to have their sentence appealed, the appeal court will consider whether the sentence is appropriate, considering different sentencing principals such as:
● The nature of the crime
● The impacts of the crime on the victim
● The background of the offender
● The sentences imposed in similar cases3
When to Appeal?
An appeal must be brought within 30 days of a sentence, conviction, or acquittal.
What kinds of decisions can an appeal court make?
1. Dismissals: if the evidence supports the conviction, and there is no significant error made by a trial judge, the appeal can be dismissed.
2. Ordering a new trial: if the appeal court finds that the trial was not fairly or properly conducted, or that there was a significant error of law, the appeal court may set aside the acquittal and order a new trial
3. Substituting a verdict of guilt: In a small number of cases that don’t involve a jury, the appeal court has the power to overturn an acquittal and find the offender guilty, and then to sentence them.
4. Acquittal: if the evidence does not support the conviction, the offender can be found not guilty, or acquitted.
5. Varying a sentence: the appeal court may change a sentence through increasing or lowering a sentence, or remove or add penalties.
What Documents are needed?
Except in an inmate appeal (the appeal of someone currently in jail or prison), certain important documents need to be filed with the court:
● An appeal book containing documents pertaining to the appeal
● A factum outlining the arguments for appeal.
● The complete transcript from the previous trial
It is important that the appellant provides the correct amount of factums and appeal books, as required by the Criminal Appeal Rules s 18(1), as well as complying with (2) by filling out a “certificate of perfection,” outlining that the appropriate documents have been served and filed, that the transcript is complete, the length of time for the oral argument being presented in court, and contact information for any parties appearing at the appeal. Such a process is known as “perfecting the appeal”, and must be done within the timeframes set out in the Criminal Appeal Rules, otherwise, the appeal can be considered abandoned and thrown out.
Anyone can attend appeal hearings, including any victims and their families. An offender who is in custody does not usually attend their appeal. However, in the case of an inmate appeal, the offender usually attends and argues his/her appeal independently. The hearing does not consider new evidence unless it is particularly significant.
For more information on criminal appeals, you can contact one of our specialized criminal lawyers. You can reach our office at 905-366-0202 or contact us through our website here.
Nothing in this article should be considered or relied on as legal advice or opinion. This article only provides general information and should you require assistance, please contact us to book a free initial consultation.
– Ontario, The Ministry of the Attorney General, “The Criminal Appeal Process in Ontario” (webpage) [MAG].
– Criminal Appeal Rules, CRC, c 4 (1993) [Rules].
– MAG, supra note 1.