Launching an Appeal

After the court renders a decision and imposes a sentence, either side can launch an appeal to a higher court, asking that the decision or sentence be reversed or changed. The person who brings the appeal is called the appellant and the person who responds to the appeal is called the respondent.

Appeal rights depend on the type of case and the reason for the appeal. If a person is convicted in an indictable proceeding, they may appeal a question of law alone without permission. For other grounds — including questions of fact, mixed law and fact, or sentence — they usually need leave from the appeal court. Summary convictionLess-serious criminal offences appeals follow different rules.

An appeal does not involve a new trial or a rehearing of your case. There will be no witnesses called or a chance to present new evidence unless the court grants permission for fresh evidenceEvidence that was not introduced in the original proceeding. to be introduced. For an appeal to be successful, you must show that the previous court made a factual or legal error that affected the outcome of your case, or that the judge's decision was unreasonable or cannot be supported by the evidence. An appeal does not stop the enforcement of an order or judgment and isn't a way to avoid complying with a court decision.

An appeal starts with a Notice of Appeal where you describe what the appeal is based on, such as errors of law or facts. Depending on the appeal court, you might also need to file an appeal book. It will include the notice of appeal, the information or indictment, the trial transcript and the list of exhibits from the original trial. You might also be asked to write out your arguments in a document referred to as a factum.

Self-represented litigants can find advice on your provincial court’s website or you can consult with staff in the appeal court’s registry. Procedures will vary from one province to another. In some circumstances, you will need permission or “leave” to bring the appeal.

The period you have to launch an appeal varies, so check with your local court. In Alberta, for example, the application for an appeal must be submitted within 30 days of the sentencing in a criminal matter. There are some exceptions and it is your responsibility to know what your time limit is. If you’ve missed your time to appeal, talk to a lawyer to determine if you are eligible for an extension.

The decision to appeal should not be taken lightly. Launching an appeal can be costly in terms of money and time, as there are processing and legal fees plus other costs, such as paying for transcripts and an appeal record.

Generally speaking, an appeal court only reviews evidence and oral arguments that were presented to the lower court. In limited circumstances, an appeal judge may permit fresh evidence to be introduced. If you intend to introduce new evidence, you need to let both the appeal court and the prosecutor know about this well in advance of the hearing date and include that in your Notice of Appeal.

Courts apply a strict test before allowing fresh evidence. The test comes from the Supreme Court of Canada decision R. v. Palmer and requires you to show all four of the following:

First, the evidence could not have been discovered or obtained with reasonable effort before or during your trial. This is usually the hardest condition to meet. If you simply chose not to present the evidence at trial, or if you could have found it with reasonable effort, the court will likely refuse to admit it.

Second, the evidence is relevant to an issue in your appeal.

Third, the evidence is credible, meaning the court finds it reasonably capable of belief.

Fourth, if the court accepts the evidence, it could reasonably have changed the outcome of the trial. Evidence that would not have affected the verdict is not enough.

All four conditions must be met. Simply having new evidence is not sufficient on its own.

The appellant is given the chance to speak first. The court will then decide if it is necessary to hear from the other side. If so, they can address the court, with the appellant given the chance to briefly address any new issues the other side raised. The judge, or judges, hearing your appeal can ask you questions or seek clarification, based on what you are saying in court or information in your factum. At the end of the hearing, the judges will either give a ruling or reserve their decision.

Provincial courts of appeal are the highest courts in the province or territory. If a party wishes to challenge a court of appeal decision, the next step is the Supreme Court of Canada (SCC) in Ottawa.

In most cases, a party must first obtain permission from the SCC before the court will hear the appeal. This permission is called Leave to appealPermission from a court to bring an appeal.. A motion for leave to appeal must be filed in writing. Sometimes the SCC also hears oral argument on the leave application, in addition to the written submissions.

In a narrow set of circumstances, leave is not required and a party may appeal as of right. One example is where a judge of the court of appeal dissented on a question of law: in that situation, the losing party may bring the appeal without needing the SCC's permission. Whether leave is required in your case depends on the specific outcome at the court of appeal and the nature of the legal issue.