QUICK TAKEAWAY
What is an Appeal?: If you have been convicted of a Criminal Code offence you are entitled to appeal the court’s finding of guilt or the sentence you received. However, you cannot appeal simply because you do not agree with the outcome. A decision can only be varied or overturned if the trial court made a mistake in the law or significantly misunderstood the evidence. An appellate court can also modify a sentence when it feels it is appropriate. Both the defendant and the Crown have the right to file an appeal in the appropriate circumstances. Although the Criminal Code is a federal statute, each province and territory has its own criminal court system to enforce it. There are three court levels including the appeal court, which is the highest court in the province or territory. The Supreme Court of Canada (SCC) is the country’s final court of appeal.
Table of Contents:
What is an Appeal?
A criminal court appeal is essentially a review of a trial and is intended to ensure that justice was done. An appeal is used to determine whether your trial was conducted properly and whether the court's findings and sentencing are fair. Appeals are covered under s.675 (1) of the Criminal Code which states anyone who is convicted by a trial court in proceedings by indictment may appeal the conviction:
- on any ground involving a question of law alone;
- on any ground involving a question of fact or a question of mixed law and fact;
- on any ground that appears to the court of appeal to be a sufficient ground; or
- against the sentence passed by the trial court unless that sentence is one fixed by law.
The Crown can also appeal an acquittal or a sentence. However, the prosecution's right to appeal is restricted to questions in law.
An appeal is not a new trial or rehearing of your case, although the appellate court may order a retrial after considering all submissions. Except in exceptional circumstances, an appeal is not a chance to present new physical evidence or hear from new witnesses.
An appeal is not automatic; you must seek permission. You may believe you were treated unfairly or that the sentence you received was too harsh. However, in order to convince the appeal court to review your case, you must show there was a factual or legal error that affected the outcome.
Typically, you have 30 days from the conclusion of your trial to file a notice of appeal. There may be exceptions to this time limit so it is advisable to seek legal advice. There is a fee for filing a notice of appeal, which varies depending on the province or territory.
The sentence imposed at your trial will still be in force while you appeal. However, you can apply to the court to be released on bail until the appeal is heard.
Different Divisions of Appeal Courts
Different levels of court handle appeals depending on the circumstances. For example, in Alberta if you are convicted of a summary convictionUsed for lesser offences, which is the less serious type of criminal offence in Canada, your appeal would be handled by the Queen’s Bench Criminal division. In Ontario, an appeal of a summary conviction would be heard at the Superior Court of Justice.
If you have been convicted of an indictable offenceIndictable offences are more-serious criminal offences – a serious Criminal Code offence – your appeal would be heard by the court of appeal, which is considered the highest court in your province or territory.
The Supreme Court of Canada is the final court of appeal in the country. Its nine judges represent the four major regions of the country and decide “legal issues of public importance, thereby contributing to the development of all branches of law applicable within Canada.” The SCC hears appeals from the decisions of the highest courts of final resort of the provinces and territories. It also handles appeals from the Federal Court of Appeal and the Court Martial Appeal Court of Canada.
In most cases, the Supreme Court will only hear an appeal if leave is given. Leave to appeal is granted in cases involving a question of public importance or if it raises an important issue of law.
What Happens During an Appeal?
An appellate court generally reviews the testimony and evidence from the original trial. This is done by trial transcripts. You or your lawyer would be expected to file detailed submissions known as factums. The Crown would be required to do the same. During the hearing, both defence and the prosecutor have the opportunity to make oral submissions dealing with the law and facts of the case.
In some cases, new evidence can be put into the record. However, it must be considered to be in the best interest of justice and cannot be entered if the evidence could have been introduced in the original trial.
The appeal court has several options available at the conclusion of the hearing. If it is felt that the trial was improperly conducted, a new trial can be ordered. You could be found not guilty if the court finds the evidence did not support the outcome. Your appeal could be dismissed if the court determines the conviction was supported by the evidence and the trial was properly conducted. If the Crown proves there was a substantive legal error, your acquittal can be “set aside” and a new trial ordered. The appellate court could also modify the sentence you received, increasing or decreasing your jail term or adding conditions.
If you lose your appeal, you can take your case to the next highest court up to the Supreme Court of Canada.
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Céline Dostaler
Harbic Law
Nicolas St-Pierre Law
Engel & Associates
Jason Gilbert B.A., Ll.B
Lyttle Mcgarry Del Greco Llp
Glossary of Legal Terms
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
Summary conviction
Summary convictions are used for lesser offences with penalties, fines and short jail time. They reflect the majority of offences as defined in the Code.
