The Accused's Right to Appeal in Criminal Law Cases
Various crimes fall into offence types, summary convictions, indictable offences and hybrid offences. Summary offences are the less aggressive offences. Indictable offences are usually the more serious type of offence, and include aggravated assault, sexual assault and murder. Hybrid or dual offences are a special class of combination offence types and the Crown counsel has the right to choose under which type of class to prosecute them; the Crown counsel can prosecute hybrid offences as indictable offences or summary conviction offences. The Criminal Code sets out the minimum and maximum fine and jail sentence for all three offence types.
Proceeding with an appeal requires considering the relevant procedural, evidentiary and substantive rules of law. The first step in the appeal process usually begins with considering the available grounds of appeal, such as an error of law. Examples of grounds for appeal include the judge improperly admitted evidence into court, the judge failed to give reasons for a decision, the judge failed to consider certain evidence, the judge made an unreasonable verdict with no facts to support it, the judge acted in a biased manner, the Crown counsel asked improper questions on cross-examination, and Charter rights were violated (e.g., illegal search by police and the judge failed to give a proper remedy, such as excluding incriminating evidence). Once an available ground is identified, and the decision is made to proceed with an appeal, the next step is to make the appeal to the appropriate court.
In making the appeal, you must prepare and file, at the appropriate court, a notice of appeal or an application “for leave” to appeal. A leave entails requesting court permission for a brief absence or delay to prepare a defence or file materials before the appeal can even be heard.
There are strict time limits for when your notice of appeal or application for leave to appeal must be served and filed. For summary conviction offences, you may appeal against a conviction or sentence, with leave of the court, on any ground of appeal that involves a question of law, a question of fact or a question of mixed law and fact. The means you can dispute the facts the judge cited and judge’s application or interpretation of legal principles or statutes but have the burden to prove otherwise.
Important procedural steps, such as ordering the transcripts of the trial proceedings and filing them with the court, must be completed in a timely fashion. Depending on the circumstances of the appeal, there may be other steps to consider, such as filing an application for an extension of time, an application to introduce fresh evidence, or an application for bail pending appeal. It is important that either the notice or application is filed within the appropriate time limit, or else your rights of appeal could potentially be extinguished.
It is important to note that the action of filing of a notice of appeal does not automatically suspend the operation of the sentence which was imposed. Nevertheless, you do have the right to apply for bail pending an appeal in order to be released from custody.
Powers of the Appeal Court
The appellate court has a variety of powers at its disposal. It can order a new trial, it can vary the sentence or it could find you not guilty. The appeal court can dismiss the appeal although if it finds that the trial was in fact properly conducted. An appeal can be dismissed even if it was found that a small error occurred.
Know Your Rights
Appeals are a highly specialized form of legal advocacy. Unlike a trial, witnesses are rarely called and the court relies on the transcript of testimony from the trial and written submissions of the parties. As such, it is recommended that you contact a criminal law firm, such as ours, which routinely practices in these types of complex criminal law matters.
At Donnell Law Group, our lawyers have the expertise and experience needed to file an appeal. We will review the details of your conviction or sentence, and discuss whether you may have grounds for appeal. If hired to represent you, we will fight hard in seeking the justice and equitable result that you deserve. Speak to a criminal lawyer at Donnell Law Group. We service Markham, Newmarket, Barrie, Bradford, Richmond Hill, Keswick and Southern Ontario.