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What You Need to Know About Criminal Appeals in Canada

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While a criminal conviction in a Canadian court appears to mark the end of legal maneuvering, all defendants have the right to seek higher court review of the lower court’s decision-making and sentencing. Rather than serving as a retrial, appeals are a review process used to determine if the trial was conducted properly and assess the fairness of the lower court’s findings and sentencing.

Due to the complexities of the appeals process and higher court review, defendants planning to seek an appeal should hire an experienced criminal defence lawyer to help strategize the most effective appeal. In fact, an effective criminal defence lawyer — such as those of the Greater Toronto Area’s Mass Tsang — would have already examined potential appeal options in advance of the lower court’s rendering of judgment.

Appeals Process Codified by Canada’s Criminal Code

Canada’s Criminal Code governs the appeals process, though each province’s approach may vary slightly due to their distinct criminal court rules. Part XXI — Appeals-Indictable Offences — of the Criminal Court lays out the legal processing of appeals in indictable offence cases, which typically involve serious crimes carrying severe penalties. Section 812 of the Code addresses appeals in summary conviction cases covering less severe crimes with lighter sentences.

In Ontario, summary conviction appeals are handled by a judge in the Superior Court of Justice in the community where the crime was committed, while indictable offence appeals are heard by a panel of judges under the jurisdiction of the Court of Appeal for Ontario in Toronto. Appeals do not necessarily end with these courts because Superior Court decisions in summary conviction appeals can be further appealed to the higher Ontario Court of Appeal, though only to address outstanding questions of law. Indictable offence Decisions by the Court of Appeal for Ontario can be further appealed to the Canadian Supreme Court, though less than 3% of these appeals get accepted for review.

While summary conviction defendants automatically have the right to appeal to the Superior Court, most indictable offence defendants must get permission by “seeking leave to appeal” to the Ontario Court of Appeal. If the Court of Appeal declines to hear an appeal, it effectively ends the appeals process. Certain criminal convictions and sentences — such as murder convictions, life sentences, and extradition orders — are automatically heard by the Court of Appeal without the need to seek leave. Those seeking relief from the Supreme Court must also seek leave and face a much higher threshold for gaining high court approval for the review.

Types of Appeals Heard by the Higher Courts

Appeals to the higher courts can be made against the conviction or the sentence and must be based on questions of law, fact, and/or fairness. In other words, your unhappiness about the case’s outcome is irrelevant to the appeals process. Appeals challenging the conviction typically seek a review of potential trial errors, procedural issues, and whether the evidence introduced at trial truly supports the conviction. Appeals challenging the sentence seek a review of how sentencing principles were applied and consideration of whether the sentence is fair and appropriate. Sentencing appeals can also challenge whether trial errors may have impacted the sentencing decision.

Unlike the U.S. legal system, which only allows appeals by criminal defendants, Canada’s system allows prosecutors to appeal acquittals, dismissals, and sentencing. Appeals from the Crown face a higher legal threshold than defendant appeals in that they must prove that the court’s actions arose from a significant error of law. A Crown sentencing appeal recently made headlines when the Ontario Court of Appeal tripled an “unfit” sentence handed down to a child molester by a lower court. According to its ruling, the high court deemed that the lower court judge gave far too much weight to mitigating factors relating to the defendant’s mental health and immigration status and ignored the “horrific” aggravating factors of the crime.

Appeal Court Procedures

Once you have been found guilty of a criminal offence, you have 30 days to file a notice of appeal with the appropriate higher court. Those in custody can file an inmate notice of appeal. When submitted with an explanation for the delay, appeals courts usually accept these for up to six months after conviction. Those not in custody who fail to meet the 30-day deadline can file a motion to extend the time to file the appeal combined with an affidavit explaining the reasons for the delay.

Before an appeals court schedules a hearing, it must receive trial transcripts and other relevant documents. The original trial’s defendant and prosecutor must also file written arguments called “factum” supporting their positions on the appeal. Those serving a jail or prison sentence can petition the court to be released on bail until the date of their hearing.

During the appeal hearing, the opposing sides provide oral submissions highlighting the legal justification for their positions and detailing elements of the trial that are being challenged. Appeals courts only allow for the submission of new evidence unavailable during the original trial. Fresh evidence also must have a direct bearing on the appeal’s critical issues and serve the interest of justice. The appeals judge or panel may issue their decision at the close of the hearing or a later date, depending on the complexity of the case.

Appeal Court Decisions

Canadian appeals courts have significant leeway in how they can change the outcome of a lower court trial. Of course, if they don’t accept the defendant’s challenge against a conviction or believe the sentencing was fair and legally appropriate, the appeal is dismissed, and the lower court’s actions stand. Options available to appeals courts in successful defendant appeals include:

  • Set aside the conviction and order a new trial
  • Acquit the defendant
  • Reduce the duration of incarceration
  • Reduce or eliminate other penalties like fines and probation

The appeals courts have similar options — though somewhat in reverse — with successful Crown appeals. Thus, instead of “setting aside a conviction,” they set aside the acquittal and order a new trial. If the original trial was held before a judge and not a jury, appeals courts can set aside the acquittal and enter a guilty verdict. Or, instead of reducing a penalty, they can increase it.

Consult with Toronto’s Mass Tsang on Your Appeal

Due to the legal complexity of appeals, anyone convicted of a criminal offence should always consult with a criminal defence lawyer to determine the best approach for challenging the decision and/or sentence in a higher court. Experienced criminal defence lawyers can assess trial details to determine potential grounds for appeal, develop an appeal strategy, and argue your position based on the relevant legal merits of the appeal. The Greater Toronto Area lawyers of Mass Tsang have three decades of experience strategizing effective defence strategies that provide favourable results for their clients. When needed, our lawyers have also secured positive outcomes in appeals. To schedule your free consultation, contact Mass Tsang Today.



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