What is an Appeal?

A criminal court appeal is essentially a review of a trial and is intended to ensure that justice was done. An appeal is used to determine whether your trial was conducted properly and whether the court's findings and sentencing are fair. Appeals are covered under s.675(1) of the Criminal Code which states anyone who is convicted by a trial court in proceedings by indictment may appeal the conviction:

on any ground involving a question of law alone; on any ground involving a question of fact or a question of mixed law and fact, with leave of the court of appeal or a judge of that court (or on the certificate of the trial judge that the case is a proper case for appeal); on any other ground that appears to the court of appeal to be a sufficient ground, with leave; or against the sentence passed by the trial court, with leave, unless that sentence is one fixed by law.

The Crown can also appeal an acquittal on any ground that involves a question of law alone. The Crown can also appeal a sentence in proceedings by indictment, but only with the court's permission (leave).

An appeal is not a new trial or rehearing of your case, although the appellate court may order a retrial after considering all submissions. Except in exceptional circumstances, an appeal is not a chance to present new physical evidence or hear from new witnesses.

Whether you need permission to appeal depends on your ground. If your appeal involves a question of law alone, you have the right to appeal without needing the court's permission. For all other grounds, including questions of fact, mixed law and fact, or any other reason, you must obtain leave from the appeal court before your appeal can proceed.

Typically, you have 30 days from the conclusion of your trial to file a notice of appeal. There may be exceptions to this time limit, but appeal deadlines are strict and legal advice may be important. There is a fee for filing a notice of appeal, which varies depending on the province or territory.

The sentence imposed at your trial will still be in force while you appeal. However, you can apply to the court to be released on bail until the appeal is heard.

Different levels of court handle appeals depending on the circumstances. For example, in Alberta if you are convicted of a summary convictionLess-serious criminal offences, which is the less serious type of criminal offence in Canada, your appeal would be handled by the Court of King's Bench of Alberta. In Ontario, an appeal of a summary conviction would be heard at the Superior Court of Justice. If you have been convicted of an indictable offenceA more serious type of Canadian criminal offence., a serious Criminal Code offence, your appeal would be heard by the court of appeal, which is considered the highest court in your province or territory. The Supreme Court of Canada is the final court of appeal in the country. Its nine judges represent the four major regions of the country and decide "legal issues of public importance, thereby contributing to the development of all branches of law applicable within Canada." The SCC hears appeals from the decisions of the highest courts of final resort of the provinces and territories. It also handles appeals from the Federal Court of Appeal and the Court Martial Appeal Court of Canada. In most cases, the Supreme Court will only hear an appeal if leave is given. Leave to appeal is granted in cases involving a question of public importance or if it raises an important issue of law.

An appellate court generally reviews the testimony and evidence from the original trial. This is done by trial transcripts. You or your lawyer would be expected to file detailed submissions known as factums. The Crown would be required to do the same. During the hearing, both defence and the prosecutor have the opportunity to make oral submissions dealing with the law and facts of the case.

In some cases, new evidence can be put into the record. However, it must be considered to be in the best interest of justice and cannot be entered if the evidence could have been introduced in the original trial.

The appeal court has several options available at the conclusion of the hearing. If it is felt that the trial was improperly conducted, a new trial can be ordered. You could be found not guilty if the court finds the evidence did not support the outcome. Your appeal could be dismissed if the court determines the conviction was supported by the evidence and the trial was properly conducted. If the Crown proves there was a substantive legal error, your acquittal can be “set aside” and a new trial ordered. The appellate court could also modify the sentence you received, increasing or decreasing your jail term or adding conditions.

If you lose your appeal, you can take your case to the next highest court up to the Supreme Court of Canada.