Appeals
Introduction
As with trials (and, indeed, most other topics at this site), appeals are not easy to discuss in a limited space. They are best handled by qualified legal counsel. This section is just intended to give a brief glimpse of what the appeal system is all about.
It is very important to realize that an appeal is not just a second opinion. Generally, an appeal court will not be very interested in a complaint that the trial court's decision was just "wrong". It will want to hear what specific errors were made. Because the law concerning what kinds of errors can ground a successful appeal is complex and subtle, you should get the help of an experienced lawyer, if at all possible, and inquire into the possibility of getting legal aid funding, or court-appointed counsel under s. 684 of the Criminal Code. Apart from the complexity of the legal argument, there are likely to be documentary requirements that are difficult for a lay person to cope with. If you really have to do it all yourself, you might want to check out the handy basic guides put out by legal publishers like Carswell, written for lawyers but basic enough for a lay person to understand.
An appeal from a criminal conviction can concern the conviction itself, or the sentence imposed. You should know that the accused is not the only person able to appeal. If you are aquitted at trial, the Crown can ask for that acquittal to be overturned, and may also appeal a sentence it thinks is too light.
You cannot appeal individual rulings of a trial judge, as the trial goes along. It is only when the trial is over (assuming you are unhappy with the final result!) that any complaints may be taken to the appeal court. This means that a typical appeal often includes several complaints, or "grounds".
The person, or side, appealing is called the "appellant". The other person, or side, is called the "respondent".
Where do you go with your appeal? The answer depends on the original charge, and whether it was "summary" or "indictable". The differences between these kinds of charges were mentioned earlier. If you were charged with an offence that can go ahead either summarily or by indictment, it is presumed in law to have been dealt with summarily unless the prosecutor actually chose to proceed by indictment. If you are convicted, want to appeal, but are not sure whether the charge was summary or indictable, you can find out by asking the Registry at the court house to check their files.
Summary Conviction Appeal Court
Appeals from trials of summary offences are regulated by Part XXVII (Part 27) of the Criminal Code. It goes first to the "superior court" of the province. In British Columbia, the Yukon and Northwest Territories, and Nova Scotia, this is the Supreme Court. In Alberta, Saskatchewan, Manitoba and New Brunswick, it is the Court of Queen's Bench, and in Ontario it is the Ontario Court, General Division. In Quebec, it is the Superior Court, and in Prince Edward Island and Newfoundland it is the Trial Division of the Supreme Court.
The accused person can appeal against conviction, and the Crown can appeal against acquittal. Either side can appeal against sentence, or a verdict of "unfit to stand trial" or "not criminally responsible on account of mental disorder".
The appellant must give notice of intention to appeal, as detailed by the Rules of Court for the province in question. As an example, the British Columbia Rules of Court are found in a book called "British Columbia Annual Practice" (a new edition comes out each year), that can be found in a law library or obtained from Western Legal Publications, 301-One Alexander Street, Vancouver, B.C. V6A 1B2.
The "Summary Conviction Appeal Rules" for B.C. say the notice of appeal must be filed with the court Registry within 30 days of the order appealed from (though you can sometimes get an extension). You should know that this 30-day limitation period runs from the date of sentencing, not the date of conviction (if those are different dates). You need to fill out six copies of "Form 1", and hand it back in. The Registry sends one copy on to the Crown, so you do not have to notify them directly.
If the Crown decides to appeal from your acquittal, or what it thinks is too lenient a sentence, it will also file a stack of copies of Form 1, and one of these will be served on you. You should know that you cannot block their appeal by evading service, because they can, after a period, ask the court to order "substituted service" - which may be as simple as publishing a notice in the newspaper - and the appeal will proceed regardless.
Once the notice of appeal is filed, you should check with the Registry on further paperwork requirements. If transcripts from the trial are needed, you will have to file proof within another 14 days that you have ordered these. Talk to the people at the Registry about these deadlines and make sure you meet them all, and eventually a hearing date will be set.
If you do not keep on top of all the things you have to do to "prosecute" your appeal, it may be dismissed. If you change your mind at any point about continuing with the appeal, you may notify the Registry that you want to abandon it.
The Criminal Code and the Rules of Court also set out procedures for release from custody (bail) while you are waiting for your appeal to be heard, or a stay of a probation order or driving prohibition. You should know that, according to the Code, paying a fine does not take away your right to appeal against it. It is not considered an admission or an acceptance of it.
As an alternative to the procedure we have just briefly described, the Code also describes a way of appealing from a summary conviction, called appeal by "agreed statement of facts" (it used to be called appeal by "stated case") [s.830]. It can only be done where the error you say was made concerns a point of law or of jurisdiction. The appellant must, within 15 days, file a statement of facts and issues, agreed to in writing by the respondent. Needless to say, this is not always easy to organize.
If the appeal to the superior court is not successful, there is a route for further appeal to the Court of Appeal, which is the highest level of court within each province (appeals from convictions for indictable offences go straight to the Court of Appeal, as described below). For a summary conviction appeal, the question must be one of law alone, and leave (permission) of the Court of Appeal is required. You should know, if you are appealing a sentence, that the fitness of a sentence is not considered a question of law alone.
Court of Appeal - Indictable Appeals
These come under Part XXI (Part 21) of the Code. They go straight to the Court of Appeal.
The appeal may be allowed if the verdict is unreasonable or cannot be supported by the evidence, or is based on a wrong decision on a question of law, or amounts to a miscarriage of justice. Even where there is an error of law, the appeal may fail if the Court concludes that it has not led to a substantial wrong or miscarriage of justice.
The accused person has an absolute right to appeal against conviction on questions of law, but must get leave to appeal on matters of fact, or "mixed law and fact", or on any other ground.
He or she must get leave to appeal against sentence, and the appeal can be on a question of law, or a complaint that the sentence is "unfit". There can be no appeal against a sentence that is fixed by law. It is worth noting that the Court of Appeal can increase the sentence, even when the complaint being made is that the sentence was too tough, but this will not usually be done unless the Crown itself is also complaining, and has notified the appellant of this.
A person convicted of second degree murder has the right to appeal against his or her parole eligibility date being set more than ten years into the life sentence. There is also an absolute right of appeal against an order under section 741.2 of the Code, delaying parole, and of a finding of not criminally responsible, or unfit to stand trial, because of mental disorder.
The Court of Appeal usually sits in panels of three judges. For especially important and contentious matters, the Court may sit in a panel of five judges. When leave to appeal is required it can be granted, if necessary, by a single judge of the Court, or by a panel of three. If a single judge refuses leave, that decision can be appealed, if a notice is filed within seven days, to a panel of three judges. An alternative to the leave requirement, when the trial was by judge and jury, is to obtain a certificate from the trial judge.
The result of an appeal against conviction will usually be either dismissal of the appeal, or substitution of an acquittal for the conviction, or an order that there be a new trial.
The Crown has the right to appeal against an acquittal at trial, or a judicial stay of proceedings, or a finding of not criminally responsible by reason of mental disorder, on issues of law alone.
As with summary conviction appeals, a notice of appeal must be filed quickly with the Court of Appeal Registry. Guidance on the steps that must be taken can be had from the Registry, and by reading the Rules of Court, but there is no substitute for experienced legal counsel.
Contempt of Court
Appeals from conviction, or against sentence, for the common law offence of criminal contempt of court go to the provincial Court of Appeal [s.10].
Supreme Court of Canada
For indictable offences, appeals from the highest provincial courts - the Courts of Appeal - go to the Supreme Court of Canada in Ottawa. You have a right to this if a judge of the provincial Court of Appeal disagreed with that court's majority decision on a point of law, or if your original acquittal was overturned and a conviction was substituted. The Supreme Court of Canada will also sometimes grant leave to appeal to it, if it thinks a question of law raised is sufficiently difficult or important. You must apply quickly (within 21 days) for leave to put the question to the Supreme Court of Canada.
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FIRST LINE CRIMINAL LAW INFORMATION