Launching a Criminal Appeal: What you Need to Know

Losing a case is a tough pill to swallow.  The initial reaction of most people is to want to appeal the decision right away.  Before heading down that path, however, it is important to know what you are getting into.  Here is an overview of the most important issues that you need to be aware of.

First of all, appeals look very different than trials do.  There are normally no witnesses called.  Instead, the lawyers file a transcript of the testimony at trial, along with a copy of all of the exhibits and a written argument.  Most of the work done by the lawyer is in reviewing the transcripts and exhibits and in preparing the written argument.  There are strict time limits in terms of the actual oral arguments done in court.  Given the technical nature of appeals, it is best to have them conducted by lawyers with experience doing appeal work.

Second, an appeal is not a redo of the trial.  An appeal court can’t simply make different findings of fact than the trial judge did.  An appellate lawyer needs to point to a mistake the judge made in how he or she conducted the trial.  If the appeal is succesful, the usual result is that the conviction is quashed and a new trial is ordered.  In other words, winning the appeal usually means having to go through the trial again (although in some cases the prosecutor may decide not to go ahead with a second trial).

Third, appeals will be heard in either your local area or in Toronto.  If the prosecutor proceeded at trial by way of summary conviction, the appeal will be heard in Superior Court in the jurisdiction where the trial took place.  This is normally the case for offences such as drinking and driving, possession of marijuana, minor thefts and simple assaults.  If the prosecutor proceeded by Indictment, the appeal will take place at the Ontario Court of Appeal.  This will typically happen in more serious cases like sexual assault, serious and complex fraud, and large scale drug offences involving trafficking, production or importing.

Once you file a Notice of Appeal you can apply for release from custody until your appeal is decided. This can normally be done within a few days of the sentence being imposed, assuming you have prepared the necessary materials with your lawyer ahead of time.   A hearing will be held, and bail may be granted where the presiding judge is convinced that your appeal is not frivolous, that you will surrender into custody as ordered, and that your detention is not necessary in the public interest.

Before appealing a decision, it is best to meet with a lawyer who is experienced in conducting appeals to determine how best to proceed.


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