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Criminal Appeals

If you believe you were wrongly convicted or given an unfair sentence, or disagree with another kind of order made against you, you have the option to launch an appeal.

Criminal appeals are a complicated area of law, requiring detailed knowledge of criminal law, constitutional law, criminal procedure, trial procedure and law of evidence.  If you are seeking to launch an appeal, it is important to get the help of a lawyer who understands the complexity and nuance of criminal appeals and will put in the meticulous preparation and legal research needed for a successful appeal.

Criminal appeals in Canadian law

Under Canadian law, you have the right to

  • Appeal a finding of guilt (conviction appeal)
  • Appeal a sentence (sentencing appeal)
  • Appeal certain other orders that may be made against you in criminal proceedings

Appeals are different from trials or sentencing hearings.  They take place in a higher court than the one that convicted or sentenced you, and are essentially a review of what happened in the lower court.  There are no witnesses, and new evidence is only considered under certain circumstances.  The appeal court judges will read the transcripts of the lower court and carefully examine what was said and done in the trial or hearing.

The Crown Prosecutor can also make an appeal in many cases, such as appealing an acquittal if they believe the judge made a legal error, or appealing a sentence they believe is too lenient.

If the Crown is appealing your sentence or acquittal, you will be served with a Notice of Appeal summarizing the reasons for the appeal.  It is very important to seek legal help if you are facing an appeal by the Crown, as they will be using highly experienced and knowledgeable lawyers specializing in appeals.

Conviction appeals

You have the right to a conviction appeal if you believe that you were wrongly convicted.  The appeal court will review the record of your trial and may find a variety of errors in process and evidence, or even that the verdict is simply unreasonable.  Here are some examples of reasons for successful appeals.

An unreasonable verdict may be found if the appeals court determines that no reasonable judge who properly applied the law could have found you guilty based on the evidence heard at your trial.  The appeal court could order a new trial or even overturn the verdict.

Legal errors in your trial could result in the appeal court overturning your conviction if the trial judge made a mistake about the law that was important enough to affect the outcome of the case.

Errors admitting evidence could result in the appeal court ordering a new trial.  This could mean that the trial judge made a mistake about the rules of evidence, such as letting the prosecutor ask improper questions, or if your trial lawyer argued to exclude certain evidence based on your constitutional rights and the trial judge made a legal error in deciding against you.

Errors in the jury instructions could result in a new trial.

Misunderstanding the evidence could result in the appeals court overturning your conviction if the trial judge made an important misunderstanding about the evidence heard at trial.

Insufficient reasons is if the trial judge did not give a detailed enough explanation for a decision.  If the appellate court cannot adequately review the trial judge’s decisions for errors, they may order a new trial.

Sentence appeals

Proportionality is the most important consideration in sentencing under the Canadian Criminal Code.  Judges must make the sentence proportionate to the seriousness of the offence and the degree of responsibility of the offender.  There are minimum sentences in Canadian criminal law, but sentencing is not based on a mathematical formula so judges have great discretion in sentencing.

Appeal courts show deference to the lower courts and sentencing judges, so you will not necessarily win an appeal just because the appeal judge may have given a more lenient sentence than the sentencing judge.  However, a clearly disproportionate sentence may be changed under some circumstances.  For example:

A “demonstrably unfit” sentence is when a sentence is clearly beyond the range of sentences given in similar cases.

Improper emphasis on a factor is when a trial judge has over- or under-emphasized the importance of a particular circumstance they must consider in sentencing, making their decision unbalanced.

Irrelevant considerations is if the sentencing judge passed the sentence based on something that is legally irrelevant to sentencing.

Other legal errors or errors in principle can justify a reduced sentence if the sentencing judge approached the process of sentencing in the wrong way.

How to make an appeal in Alberta

For most criminal matters, you must file a Notice of Appeal and serve it on the Crown Prosecutor’s office within 30 days of the court decision.  Deadlines can vary, so it is important to seek legal advice about filing an appeal as soon as possible.

If you miss the filing deadline, you can ask an appeal judge for permission to file a Notice of Appeal late.  The judge will consider a number of factors such as how much time has passed since the appeal deadline, your reason for missing the deadline, if the delay causes any unfairness to the prosecution, and your chances of success if allowed to appeal.

Asking for permission to file your appeal after the deadline adds cost, complexity and uncertainty to the appeal process, so it is important to avoid missing the deadline if possible.

What does an appeal lawyer do?

An appeal lawyer provides knowledge and experience necessary for a successful appeal.  Preparing for and making an appeal is time consuming and complicated.  Your lawyer will review your case to identify potential arguments to raise on appeal, reading hundreds of pages of trial or sentencing court transcripts and doing extensive legal research.  In most cases, it is only after this extensive review that they will be able to tell you if you have a strong case for appeal or not.

If you proceed with the appeal, your lawyer will prepare a written argument for the appeal court to review before the hearing.  These written arguments are often long and complex and are very important, as the appeal judge will rely heavily on it to understand the case.

Your lawyer will also appear in person before the appeal court to argue the case, answering the judges’ questions about important aspects and providing further clarification.

Finally, your lawyer will also handle the procedural and clerical aspects of the appeal, such as filing the Notice of Appeal and submitting the written arguments to the court and Crown lawyers.

In many cases, an appeal can take as much – or more – time and research than went into preparing for the original trial.  Having the representation and help of an experienced and knowledgeable appellate lawyer is essential to a successful appeal.

Let us Help

Being charged with a criminal offence is a life-changing event but you don’t have to face this stressful situation alone. Choosing a criminal lawyer that best represents your rights is important both to ease your fears and to advise and help you through the legal process. At Kolinsky Law, our reputation, years in practice, and expertise help you find the best outcome possible no matter your situation.

 

 

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