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Criminal Appeals

If you have been found guilty, your fate is not set in stone. In Ontario, a convicted person may appeal the verdict or sentence handed out by the judge or jury. If you are found not guilty, the Crown attorney also has the right to appeal that decision. Most appeals challenge either the verdict, the sentence, or both at the same time.

At the appellate level, the procedure becomes much more complex and more stringently followed. This means that it is imperative that you obtain the services of an experienced appellate lawyer to handle your appeal. If you have been found guilty, you no longer enjoy the benefit of the presumption of innocence, and this means that any procedural slip up when arranging for your appeal may lead your appeal to not be heard.

If you have been convicted, you have a limited period of time to begin your appeal. If you are considering an appeal of your verdict or sentence, please contact DUVADIE Law at your earliest possible opportunity, so we may begin to work on your behalf.

A Brief Overview of Appeal Procedure

Every appeal contains its own unique subtleties, so it is difficult to offer general instructions that will apply in every circumstance. When reading this overview, please remember that this is only general information, and not an exhaustive summary of the procedural steps involved in an appeal. To learn about the procedural steps required for your appeal in greater detail, it is best if you contact DUVADIE Law.

The first procedural rule that must be adhered to is the time limitation. The general rule is that a notice of appeal must be filed within 30 days of your conviction or sentence. Failure to meet this requirement may be fatal for your appeal.

Once you have retained a lawyer to handle your appeal, they will need to determine what kind of appeal stands the best chance of being successful, or what kind of appeal will lead to the outcome you desire. As was mentioned above, a first step would be to determine whether you want to appeal your conviction, your sentence, or both. Once the nature of the appeal has been decided, your appellate lawyer will order transcripts of the hearing that is relevant to your appeal. Transcripts of this type are expensive, especially if you have been convicted after a lengthy trial, and their cost will form part of your lawyer’s fees.

Once the transcripts have been obtained, your appellate lawyer can begin to compile your grounds of appeal. In Canada, there are two major categories of grounds of appeal: questions of law and questions of fact.

If your conviction was a consequence of an erroneous application of the law by the trial judge, you will appeal the decision on the basis of a question of law. Examples of errors of law that may provide grounds of appeal include admitting inadmissible evidence, improper jury instructions, insufficient reasons provided by the trial judge, etc. These types of grounds of appeal are often considered stronger than questions of fact.

Appellate courts must show deference to the jury or trial judge’s findings of fact, since they are the judicial actors best positioned to comprehend the facts of the case. This means that appeals based on questions of fact often have a lower likelihood of success than appeals based on questions of law. Examples of errors of fact, also known as errors of mixed fact and law, include a clear misapprehension of the facts by the judge or jury, incompetence of counsel, a disconnect between a conclusion and the factual evidence admitted at trial, etc.

Another possible ground of appeal is fresh evidence, however appellate courts are very reluctant to broaden the evidentiary record beyond what was before the trial judge or jury. There are complicated procedural applications that must be made to allow for the admission of fresh evidence on appeal, and they are seldom successful.

One benefit provided by pursuing an appeal is the possibility of obtaining an order that allows you to be released on bail while your appeal is being carried out. If you have been sentenced to a custodial sentence, this order will ensure that you do not serve unnecessary jail time. However, these orders are not granted in every instance, and your ability to obtain one will depend on the factual circumstances of your case.

The next step in the appeal process is the appeal hearing. The forum for your appeal hearing depends on the severity of the charges you are facing. For matters where the Crown has proceeded by indictment, the appeal hearing will occur at the Ontario Court of Appeal, located in Toronto. For matters that have proceeded summarily, the appeal hearing can occur at the Ontario Superior Court of Justice.

Appeal hearings differ significantly from criminal trials, where the accused must attend and most of the time is spent entering evidence onto the record. An appeal is typically heard by a panel of three judges, and the hearing is composed entirely of submissions by the counsel for the appellant and the respondent. Most of the time, the accused or convicted person does not attend the hearing for their appeal. For an accused person to attend their appeal hearing, special permission must be sought.

When it comes to possible outcomes, an appeal court may decide to do any of the following things: dismiss the appeal, order a new trial, change the verdict, or vary the sentence imposed.

If you are considering appealing your conviction or sentence, please contact DUVADIE Law at 613-422-1155 or Toll-Free at 1-855-422-1155. 

Page last updated Sep 21, 2018 @ 23:06

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