08/08/2017
The Accused's Right to Appeal in Criminal Law Cases
If you are found guilty of a criminal offence in Ontario, you may request that a higher court review what happened at your trial. This review process, called an appeal, can be launched against either the conviction itself or the sentence that was imposed. It is important that you know your rights and responsibilities in the appeal process related to offence(s) convicted of. It is recommended that you seek professional legal advice from a criminal law firm to help navigate you through this highly regulated process.
Offence Types
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.
Procedure
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.
Limitation Period
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.
Bail
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 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.