QUICK TAKEAWAY
Launching an Appeal: After a court makes a decision on guilt and imposes a sentence, both the convicted person and the Crown attorney can seek an appeal of either ruling. Appeals are not automatically granted and will only be successful if you can show that the trial judge made a legal error, that there was a miscarriage of justice or that the decision cannot be supported by the evidence. Appeals must be carefully considered as they can be costly in terms of time and money.
Table of Contents:
What is 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.
You do not have an automatic right to appeal a decision, as the appeal court can refuse to reconsider any verdict. 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 evidenceAny evidence 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.
How Do I File An Appeal?
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.
Is There a Time Limit for Appeals?
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.
How Much Does it Cost to File an Appeal?
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.
Can I Introduce Fresh Evidence?
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.
You will have to explain what the new evidence is, why it makes a difference and why you did not call this evidence at trial. The new evidence must be admissible under the normal rules of evidence and you must be able to demonstrate that it is reliable.
What Happens at an Appeal Hearing?
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.
Can I Appeal an Appeal Court Decision?
Provincial appeal courts are the highest court in the province or territory. Any appeal of their decision must be taken to the Supreme Court of Canada (SCC) in Ottawa. Leave to appealPermission to take the appeal to a higher court, or permission, is required for the case to be heard by the SCC. Motions for leave to appeal must be filed in writing. Sometimes they are also heard orally, in addition to the filing of written arguments.
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Glossary of Legal Terms
Fresh evidence
Any evidence not introduced in the original proceeding.
Leave to appeal
Permission to take the appeal to a higher court.
