HOW ARE APPEALS DIFFERENT FROM A TRIAL (OR A SENTENCING HEARING)?

Appeals are very different from a trial or a sentencing hearing. An appeal is not a “new trial,” or a second chance to ask for a more lenient sentence in front of a different judge. Instead, an appeal is more like a review of what happened in the lower court.

In general, an appeal is heard based on the “record” that was before the lower court. This means that appeal court judges read the transcripts of what was said in the lower court, but no witnesses are called or questioned by lawyers. In certain circumstances, the appeal court can consider “fresh evidence” (new information or evidence that was not before the lower court). But for the most part, an appeal is a careful examination of what was said and done in the trial court, not a repeat of the trial or sentencing arguments.

The word deference is often used when lawyers and judges talk about appeals. Appellate courts show deference towards the decisions of lower courts. This means that they show respect to the lower court’s decisions – even if the appeal court thinks they might have reached a different decision than the trial judge. A lower court is not automatically “wrong” just because a different judge might have reached a different decision. For this reason, it is not enough to simply argue that the trial court reached the wrong decision.

IF I WAS FOUND GUILTY AT TRIAL, WHAT ARE SOME OF THE REASONS I COULD WIN AN APPEAL OF MY CONVICTION?

If you were found guilty after a trial, some common examples of reasons you might win a conviction appeal include:

• An unreasonable verdict: If no reasonable judge who properly applied the law could have found you guilty based on the evidence that was heard at your trial, the appeal court could order a new trial, or even overturn the verdict and declare you not guilty.

• Legal errors: If the trial judge made a mistake about the law, and if this mistake was important enough that it could have affected the outcome of the case, the appeal court could overturn your conviction. For example, if your argument at trial was self defence but the trial judge misunderstood or misstated the law of self defence, you could win the appeal.

• Errors admitting evidence: If the trial judge made a mistake about the rules of evidence (for example, by letting the prosecutor ask certain kinds of improper questions), an appeal court might decide that the trial was unfair and order a new trial. Or if your trial lawyer argued that some evidence against you should be excluded because your constitutional rights were violated, but the trial judge made legal errors when deciding against you, this could be enough to win an appeal.

• Errors in the jury instructions: If you had a jury trial, and the judge made mistakes instructing the jury, an appeal court could order a new trial.

• Misunderstanding the evidence: If the trial judge makes an important mistake about the evidence that was heard at the trial, this kind of misunderstanding (or “misapprehension”) could cause the appeal court to overturn your conviction.

• Insufficient reasons: Trial judges have a duty to give reasons that explain the decision to the parties. The reasons must be detailed enough that an appellate court can review their decision to see if they made any errors. If a trial judge’s reasons are too brief or vague, the appeal court may order a new trial.

WHAT ARE SOME OF THE REASONS I COULD WIN A SENTENCE APPEAL?

Judges are required to consider a number of different factors when they pass sentence on someone. The Criminal Code makes “proportionality” the most important thing a judge needs to consider when imposing a sentence. A sentence must be proportionate to the seriousness of the offence, as well as the degree of responsibility of the offender. A sentence that is clearly disproportionate is unfit, and may be changed by the appeal court.

Sentencing in Canada is not based on a mathematical formula. Judges have great discretion when deciding what sentence should be imposed, and appeal courts show sentencing judges a very high level of deference. You will not win a sentence appeal just because an appeal judge might have given you a more lenient sentence if they had been the sentencing judge.

Having said that, sentencing judges do not have complete freedom to impose any sentence they wish. An appeal court can change the sentence a person receives in some situations. For example:

• A “demonstrably unfit” sentence: A sentence that is clearly outside the range of sentences that similar offenders should receive in similar circumstances may be “demonstrably unfit,” and an appeal court could change the sentence.

• Improperly emphasis on a factor: If the trial judge has over-emphasized or under-emphasized the importance of one of the relevant circumstances a judge must consider when passing sentence, an appeal court could change the sentence. For example, if the sentencing judge did not consider the importance of rehabilitation for a youthful, first-time offender, the appeal court could decide to reduce the sentence.

• Irrelevant considerations: If the sentencing judge relied on something that is legally irrelevant when passing sentence, the appeal court could vary the sentence.

• Other legal errors or errors in principle: Sentencing judges are told to approach the process of sentencing in a certain way, and an error in principle about how they sentence someone, or a legal mistake about how a sentence should be imposed, can justify an appeal court reducing the sentence.

To determine whether you have a good chance of winning a sentence appeal, an appeal lawyer will need to review the information that was put before a sentencing judge, the sentencing judge’s reasons, and decisions from appeal courts in other sentencing cases. Only then can your lawyer give you an informed opinion about whether your sentence appeal is likely to succeed.

WHAT WILL AN APPEAL LAWYER DO FOR ME?

In most cases, there are four basic things an appeal lawyer does for a client.

1. The appeal lawyer usually takes care of the procedural and clerical aspects of the appeal, including filing a Notice of Appeal and ordering transcripts of the trial (or sentencing).

2. The lawyer reviews your case to determine what arguments you might be able to raise on an appeal. This involves reading the transcript from the trial court or sentencing court, which can sometimes be hundreds or even thousands of pages. It also involves extensive legal research, such as reviewing legal textbooks to find legal issues and attempting to find other cases that support your appeal. It is often only after this extensive review and research that a lawyer is able to tell you whether you have a strong case on appeal, or whether you would be unlikely to win the appeal and should abandon it.

3. If you decide to proceed with the appeal, your lawyer prepares written argument for the appeal court to review in advance of the hearing. Again, this can be a detailed, time-consuming process of legal research and composition. Written arguments for appeal courts are often long and complex. Once the written arguments are complete, your lawyer will prepare a final copy and submit it to the appeal court and the Crown lawyers, along with any authorities or key documents that relate to your appeal. These written arguments are very important, because appeal judges rely heavily on these written arguments to understand the case.

4. Finally, your lawyer appears in person before the appeal court and argues the case. The judges will ask your lawyer questions about any issues requiring further clarification or that the judges find particularly important. This gives your lawyer a chance to persuade the judges about the merits of your appeal in person.

For many criminal cases, the amount of time and research that goes into an appeal at matches, and sometimes exceeds, the amount of work that will have gone into preparing for the trial.

HOW LONG DO I HAVE TO LAUNCH AN APPEAL?

There are very strict deadlines for filing appeals. You must file a copy of a Notice of Appeal in the appropriate court (and serve it on the Crown prosecutors’ office) within these time limits, or you may forever lose your right to appeal. For most criminal matters, you have only 30 days from when the lower court made its decision to file a Notice of Appeal and serve it on the Crown’s office. Deadlines can vary, however, so it is important that you get legal advice about when an appeal must be filed.

IF I HAVE MISSED A FILING DEADLINE, IS THERE ANYTHING I CAN DO?

You can ask an appeal judge for permission (“leave”) to file your Notice of Appeal after the deadline has passed. The judge will consider a number of factors when deciding whether to give you permission to file late. For example:

• How much time has passed since the appeal deadline (the sooner you file, the better),
• Whether you have a good reason for missing the deadline,
• Whether the delay has caused any unfairness to the prosecution,
• Whether you actually decided to appeal within the appeal period (and just didn’t formally file the paperwork),
• Whether you told the Crown prosecutor you intended to appeal before the deadline passed, and,
• Whether you have a chance of success if you are allowed to appeal.

If at all possible, you do not want to miss the deadline to appeal. Asking for leave to appeal adds needless cost, complexity, and uncertainty to your appeal, even if you are eventually given permission to file late.

If you have missed your deadline to appeal but still want to appeal, you should move quickly. Missing the appeal deadline by a few days is obviously better than missing it by weeks, and the longer you wait, the less likely it is that a judge will give you permission to file your appeal late.

WHICH COURT WILL HEAR MY APPEAL?

The court that hears your appeal will depend on two things: first, which court that heard your trial (or guilty plea), and second, whether the charges were handled “summarily” or “by indictment.”

In Alberta, appeals from matters that were handled in the Provincial Court can be heard either in the Court King’s Bench or the Court of Appeal. If the Crown proceeded summarily, the appeal is heard by a single judge of the Court King’s Bench. If the Crown proceeded by indictment, the appeal is heard by three judges of the Court of Appeal.

All criminal matters that were heard in the Court King’s Bench of Alberta are appealed to three judges of the Court of Appeal.

I WON MY TRIAL (OR RECEIVED A GOOD SENTENCE), BUT NOW THE CROWN PROSECUTOR IS APPEALING. IS THIS ALLOWED? DO I NEED A LAWYER?

There are some limits on the reasons why the Crown is allowed to appeal a decision, but the Crown does have a right to appeal in many cases. For example, the Crown can appeal an acquittal after trial if they think the trial judge has made a legal error, and can appeal against a sentence if the Crown thinks it was inappropriately lenient.

You will know that the Crown has decided to appeal because you will be served with a Notice of Appeal that has been prepared by the Crown lawyers. This Notice will summarize the reasons they are appealing. The Crown has the same deadlines to file and serve a Notice of Appeal as the accused.

If the Crown does appeal, you should strongly consider finding a lawyer to help you with the appeal. You will be up against highly experienced and knowledgeable Crown lawyers, who specialize in appeals. Without a lawyer on your side, you are at a significant disadvantage.

IF I LOSE MY APPEAL, CAN I APPEAL TO AN EVEN HIGHER COURT?

Appeals heard in the Court King’s Bench can be appealed to the Court of Appeal, but only with the prior approval of a judge of the Court of Appeal. This permission is called “leave to appeal.” Usually, the Court of Appeal judge will grant leave to appeal only if your case raises an important legal issue, or if the lower appeal court made a very clear error.

Appeals heard in the Court of Appeal can be appealed further, to the Supreme Court of Canada. In certain cases, if one of the three judges on the Court of Appeal “dissents” (disagrees with the majority’s decision), you may have an automatic right to appeal to the Supreme Court of Canada. In most cases, however, you need to receive leave to appeal from three judges of the Supreme Court, and typically, leave to appeal will only be granted when your case raises an important issue of law.

I RECEIVED A JAIL SENTENCE. CAN I BE RELEASED, SO I DON’T HAVE TO SERVE MY SENTENCE BEFORE THE APPEAL IS HEARD?

If a person has received a jail sentence, a judge of the appeal court has the power to order that someone be released before their appeal is heard. This is called getting “bail pending appeal.” Bail pending appeal can be very important, because in many cases, an appeal could take several months before it is heard, and a person’s appeal might not even be heard until their sentence is complete.

It may be harder to get bail pending appeal than it was to get bail before your trial. Although you have a legal right to appeal, you are no longer presumed innocent in the eyes of the law once you have been found guilty at trial. Nevertheless, bail pending appeal is still a possibility. When deciding whether to grant you bail pending appeal, a court will consider:

• Whether your appeal seems “frivolous,” or whether it appears that you have an arguable point on the appeal,
• The likelihood you will surrender into custody if your appeal is denied, and,
• Whether your detention is necessary in the public interest, taking into consideration things such as the risk you present to the public if released.

If you have been found guilty of an offence and want to appeal, you might want to consult with a lawyer before you are sentenced, to see if arrangements can be made for an application for bail pending appeal.