I have been sentenced and I don’t agree with it. What can I do about it?
So you have been found guilty and sentenced by a judge or justice. You do not agree with the sentence? Is there anything you can do?
The Criminal Code allows you to ask another level of court to review that judge or justice’s decision about what kind of sentence you got, how long the sentence was, and any conditions that might have been imposed.
If you think you want to appeal after being sentenced, 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 SENTENCED
You must file the appeal with the appropriate court WITHIN 30 DAYS of being sentenced. If you fail to bring your notice of appeal within 30 days, you may lose your ability to appeal your sentence. 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 sentence 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, 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 different sentence.
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 sentence imposed by a Justice of 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 sentencing was conducted.
If your sentencing was heard in the Provincial Court, then it depends on if the proceedings was conducted “summarily” or “by indictment”. If summarily, then your appeal will be heard in the Court of Queen’s Bench. If by indictment, then you appeal will be heard in the Court of Appeal. You will need to ask the Court Clerks or talk to your lawyer, if you had one, to find out this information.
WHAT KINDS OF THINGS CAN I APPEAL?
Appealing a sentence can be complicated. You can ask the reviewing court to change what kind of sentence you got, how long of a sentence you got, or to try to change the conditions that were imposed.
Generally, the reviewing justice only looks to see if the first judge or justice was obviously wrong or was unreasonable. That being said, there are still times where Judges make mistakes that can be changed on appeal. Another common thing to appeal would be if the Judge went higher than what your lawyer and the Crown Prosecutor agreed to without giving them a chance to explain themselves.
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 about whether the judge or justices 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?
If you win, most of the time, the Appeal Court will conduct a re-sentencing of you and impose a new sentence. This could mean a different kind of sentence, a change in how long of a sentence you got, or conditions being changed.
In some rare circumstances, you could have your sentence set aside and be sent down to be re-sentenced.
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.