I have been found guilty by a judge or justice. What can I do about it?
So you have had a trial and the judge or justice has made a finding that you were guilty of the offence(s) that you were charged with and you disagree with it. Is there anything you can do?
The Criminal Code allows you to ask a higher level of court to review that judge or justice’s decision about whether you were guilty or not, the rulings they made during the trial and, in some rare cases, whether you got a fair trial because of how your defence was conducted.
If you think you want to appeal after being convicted or found guilty, please contact a lawyer at Pringle Chivers Sparks Teskey immediately. Delay in this area can mean that you may not be allowed to appeal at all.
YOU MUST APPEAL WITHIN 30 DAYS OF BEING CONVICTED OR FOUND GUILTY
You must file the appeal with the appropriate court WITHIN 30 DAYS of being convicted (or sentenced, whichever is later). If you fail to bring your notice of appeal within 30 days, you may lose your ability to appeal your conviction. This timeline is extremely important.
While you have 30 days from the conclusion of your case, you should consult with one of our lawyers immediately after the decision because there are steps that need to be taken.
If you want to appeal your conviction and you are outside of the 30 day window, please contact us immediately. In some circumstances, you may apply to a justice for permission to appeal even if you are outside the timeline.
SHOULD I DO MY OWN APPEAL?
You can conduct your own appeal, but you should not.
Appeals are complicated and have many rules. There are specific deadlines and requirements to order things and provide them to the court. The consequences of missing a deadline or not understanding the rules can have very drastic consequences. It can result in your appeal being disallowed without you even being allowed to argue about whether you should get a new trial.
It is recommended you consult with one of our lawyers immediately if you are considering appealing a decision.
WHO DO I APPEAL TO?
Like the rest of conducting appeals, this is complicated.
If you are appealing a conviction in the Court of Queen’s Bench, then your appeal will be heard in the Court of Appeal. You would know this because your lawyer and the Crown Prosecutor would have been wearing black robes when your trial was conducted.
If your trial was heard in the Provincial Court, then it depends on if the proceedings were conducted “summarily” or “by indictment”. If summarily, then you appeal to the Court of Queen’s Bench. If the proceedings were by indictment, then you appeal to the Court of Appeal. You will need to ask the court clerks or talk to your lawyers, if you had one, to find out this information.
WHAT KINDS OF THINGS CAN I APPEAL?
Generally, there are two kinds of things that can be appealed. How the appeal justice or justices characterizes what the mistake or error is makes a very big difference in how closely they will review the mistake.
1. Errors of Law (Incorrect Legal Decisions)
Errors of law are mistakes that the judge or justice made about what the law says. For instance, it would be an error of law if the justice said you needed to prove you were not guilty. Another example might be the decision to allow the Crown Prosecutors to admit into evidence a statement that you made to police. When you allege that the judge or justice made a mistake of law that decision is reviewed to make sure it was correct.
2. Mistakes of Fact (Getting the Facts Wrong or Deciding what to believe)
Mistakes of fact or decisions about who to believe are decisions that get reviewed only to see if they were obviously wrong or reasonable. Mistakes of fact or deciding who to believe, (unless they are tied up in a legal mistake) are very hard to appeal.
WHAT HAPPENS DURING AN APPEAL?
An appeal is not a do over of the original trial. An appeal normally looks at the record that already exists. That would include the transcripts of the original trial and the exhibits that were filed such as pictures, video statements etc. That record is reviewed for mistakes that were potentially made by the judge or justice in how they trial was run, or in some rare cases, how your defence was conducted. Once that is done, a written legal argument is submitted to the justice or justices that will be deciding the appeal.
The Crown prosecutors then get to submit their written legal argument and a date is set for oral arguments to be made.
At the oral hearing, your lawyer will go first and make argument. Argument generally is not about whether you were guilty or not, but about whether the judge or justice made mistakes that affected their decisions. Usually, there will be a back and forth discussion between your lawyer and the appeal justice or justices.
Then the Crown prosecutor gets to make their argument.
Once everyone is done, the appeal justice or justices might take a short break and tell you what they have decided. However, it is more common for the justice or justices to say that they need time to make their decision.
It can take two or three months or even more time for a decision to be handed down.
Generally, a decision is handed down by faxing a copy of the decision to your lawyer and the Crown prosecutor. The normal course of action is for the decision to be published so that anyone can review it.
WHAT HAPPENS IF I WIN MY APPEAL?
Almost all of the time, winning your appeal results in you getting to have a new trial in the same level of court that your trial was heard at the first time. Once the decision is made, a date is set for the matter to go back to set a new trial.
In some very rare cases, the appeal court might decide to find you not guilty instead. This might happen if for instance, the trial judge or justice allowed some very important piece of evidence when it should not have, and the Crown prosecutor does not really have a case without that evidence.
HIRING AN APPEAL LAWYER
If you are considering an appeal, it is very important to speak a lawyer as soon as possible. At Pringle Chivers Sparks Teskey our lawyers are recognized for their experience conducting appeals and providing expert advice. Call our office today for your free consultation.