How Can I Appeal a Finding of Guilt For a Criminal Offence?

• In Canada, anyone found guilty of breaking the law may ask a higher court to review what happened at the trial.
• This is called an appeal. An offender may file an appeal against the conviction and/or the sentence.
• The Crown may also appeal against an acquittal or a sentence but, generally speaking, the Crown’s right to appeal is much more restricted than that of the offender.

In which court will the appeal be heard?

• The court will be different depending on the type of crime. Cases that usually have less serious penalties are called “summary conviction offences.” These cases are appealed to the Superior Court of Justice, and are heard before a judge of that court in the community where the trial was conducted.
• Cases that usually have more serious maximum penalties, such as murder, are called “indictable offences”, and are appealed to the Court of Appeal for Ontario, which usually sits at Osgoode Hall, 130 Queen St. West, Toronto.

What happens when there is an appeal against a conviction?

• The appeal court will look to see if the trial was conducted properly. This means that the court will consider, for example, whether the trial was fair or whether there were any significant errors made during the trial.
• The appeal court may also look at what happened during the trial to see that there is sufficient evidence to support the conviction.

Can the Crown appeal an acquittal or a sentence?

• The Crown may appeal an acquittal, but the Crown’s right to appeal is not as broad as the accused’s right to appeal and is very limited.
• The Crown must show there was a significant error of law. An example of an error of law may occur when important evidence is wrongly excluded at the trial.
• The Crown may also appeal the sentence but such appeals are also very limited because appeal courts will not usually interfere with the trial judge’s decision on sentencing.

What happens when there is an appeal against the sentence?

• When asked to review the sentence, the appeal court will consider whether or not the sentence is fair.
• The appeal court will look at the nature of the crime, the impact of the crime on the victim, the background of the offender and the sentences imposed in similar cases.

What is a hearing?

• After the transcripts of the trial are available and an appeal book and factum are prepared, the court of appeal will set a date to hear the appeal. The appeal court will listen to oral arguments of the appellant and the respondent. This is called a hearing.

What kind of decisions can be made by an appeal court?

• Dismissal

If the appeal court finds that the trial was properly conducted, and the evidence supports the conviction, the court may dismiss the appeal.If the appeal court finds that an error was not significant, the appeal court may dismiss the appeal even though there was an error.The appeal court may dismiss an appeal against a sentence if the court is satisfied that the sentence fits the crime.

• New trial ordered

The appeal court may set aside the conviction and order a new trial if it finds that the trial was not fairly or properly conducted.The appeal court may set aside the acquittal and order a new trial where there is a significant error of law.

• Substitute a verdict of guilt

In a small number of cases, the appeal court may overturn an acquittal, find the offender guilty of an offence and then sentence the offender. This power to substitute a verdict of guilt is only available when the offender has been tried by a judge sitting without a jury. Where a jury has acquitted the accused, the appeal court’s powers are limited to ordering a new trial.

• Acquittal

If the evidence does not support the conviction, the appeal court may find the offender not guilty of the charge.

• Vary the sentence

The appeal court may change the sentence and either increase or lower the sentence, or remove or add penalties (such as a fine or probation).

When will the appeal be heard?

• The length of time varies with each case. The appeal court must have the trial transcripts, and a record of what happened at the trial including the appeal book.
• The appellant and the respondent must also file written arguments on the evidence and the law. In rare cases there may also be a need for further police investigation if new evidence is brought forward.
• Anyone can attend appeal hearings.

Does the offender attend the hearing?

• In the case of a solicitor appeal, an offender who is in custody does not usually attend the appeal. In the case of inmate appeals, the offender usually attends and argues his/her own appeal.

Will the offender remain in custody before the appeal is heard?

• A jail sentence continues even if an offender brings an appeal against the conviction and/or the sentence. However, the offender may ask to be released from custody until the appeal is heard.
• If they are released on bail, they will be subject to conditions of the court that may include, for example, having no contact with the victim. The offender may be required to return to jail the day before the hearing of the appeal.
• A hearing is held when an application is brought by an offender to be released prior to the appeal.
• If the offender is released, and the case involved serious personal injury or trauma, you will be notified either through the office of Crown Attorney who tried the case, the police force, or both.

Does the appeal court hear evidence?

• The role of the appeal court is not to hear the trial again. Witnesses are generally not called in an appeal hearing and you are not required to testify. However, in some limited cases, the appeal court may consider new evidence if it is very significant.