Anyone convicted of a criminal offence has the right to appeal their conviction, or to seek leave to appeal their sentence. For less serious offences, where the Crown has elected to proceed summarily in the provincial court, appeals are heard in the Superior Court of Justice in the jurisdiction where the trial took place. For more serious charges, where the Crown proceeded by indictment, appeals are heard at the Ontario Court of Appeal in Toronto.
The time limit for criminal appeals is 30 days after the date of sentencing, so it is important to consult a lawyer as soon as possible if you intend to appeal. This time limit can be extended in some cases, but the appeal process is much easier if your appeal is filed within the 30 days.
The Nature of Appeals
An appeal is a very different type of hearing from a trial. Appeal courts do not normally hear witnesses. The role of an appeal court is not to re-try cases and decide which witnesses to believe. Appeal courts decide instead whether or not there were any legal mistakes made at trial. Some common grounds of appeal that are argued for conviction appeals include: that the judge at trial admitted evidence that should have been excluded; that the judge misunderstood the evidence; or, that the judge’s legal instructions to the jury contained mistakes.
It is sometimes possible to call new evidence on an appeal, but generally any new evidence has to be something that the defence did not know about at trial, and that might have changed the result if it had been called at trial.
If the appeal court finds that a legal mistake was made at trial, they will normally order a new trial. They will only enter a verdict of not guilty in cases where there is no evidence that could possibly support a guilty verdict. The appeal court can also reduce the sentence imposed at trial.
Bail Pending Appeal
In some cases, an appeal court will order bail pending appeal for an accused person who was sentenced to jail. The court can also restore the driver’s license pending appeal for an accused person who has been prohibited from driving. To get bail pending appeal, your lawyer will have to bring a motion to the court with affidavits signed by you and any sureties who will sign your bail. Your lawyer also must show that the appeal has a chance of success. A bail pending appeal can be complicated and take some time to prepare, so it is important to consult a lawyer as soon as possible if you want to appeal and might be sentenced to prison.
The Appeal Process
The first step in an appeal is to order the transcripts of the trial under appeal. A court reporter records every word spoken in trial courts, and in order to appeal a conviction or sentence a written transcript of what happened will be needed. For a conviction appeal, a transcript of the whole trial is necessary, while for a sentence appeal, only the sentencing is needed. For long trials, it can take a number of months for the court reporter to prepare the transcripts.
Once the transcripts are ready, both the Crown and defence prepare a written argument called a factum. After each side files its factum, the case is argued in front of one judge for appeals in the Superior Court, or three judges for appeals in the Court of Appeal. Almost all appeals are argued in less than one day, with only especially complicated cases taking longer. The judge or judges hearing the appeal can either decide the case that day, or reserve their decision and deliver a judgment later.
If you have been found guilty of a crime and wish to appeal the verdict or the sentence, you should consult a lawyer to discuss your case. Click HERE to contact Jeff Hershberg for a free consultation.