APPEAL PROCESS

If you need to launch an appeal of a criminal court decision or you are responding to an appeal launched by the prosecutor, call us to discuss your strategy today. If you launch the appeal, you are known as “The Appellant.” If you are responding to an appeal launched against you, you are known as “The Respondent.”

WHAT ARE APPEALS?

Appeals are a review by a higher court to determine whether the trial judge erred or not and whether the trial judge conducted the trial fairly. Appeals are focused on what happened at the trial or the sentencing and requires a careful review of the trial transcripts (more commonly called the Appeal Record).

REVIEWING THE CASE DURING APPEAL

Your appellate lawyer (if you are launching the appeal) will be advocating that the trial judge made a mistake in how he or she applied the law to the facts of your case. Your lawyer can also argue that the appeal panel (the justices hearing the appeal) should review whether or not the judge properly considered the evidence that was admitted or if the judge made a mistake by denying admittance of certain pieces of evidence. Finally, your lawyer may argue as to whether or not the evidence was sufficient to support a conviction.

HOW DO I APPEAL A CRIMINAL CONVICTION OR A SENTENCE?

The first important and critical element is to understand that you have a 30-day notice requirement. If you believe you may need to appeal, speak to an experienced appellate lawyer as soon as possible. Launching an appeal is not easy, and there are many cumbersome steps that must be taken. It is important to understand all of the steps the appellate court will want you to take. It is possible to appeal a conviction, a sentence or both. Finally, if you are found not guilty at trial, it is important to understand the Crown may appeal that finding. If this were to happen, you would be forced to respond to the appeal.

DIFFERENCE OF APPEALING CONVICTIONS VERSUS SENTENCES

Appealing a conviction challenges whether or not you should have been found guilty at trial. The prosecutor could appeal the decision that you were found not guilty at trial. A sentence appeal challenges the type of sentence or the length of punishment that was imposed after you were found guilty. It is possible to appeal either conviction or sentence or both.

WHAT DOES INDICTABLE & SUMMARY CONVICTION MEAN?

For the majority of the offences in the Criminal Code, the prosecutor may choose how to proceed, either by summary conviction or indictable. This is called an “election.” Section 536 of the Criminal Code sets out how elections are set. If the prosecution chooses to proceed summarily, this lessens the length of punishment that can be sought, if the matter gets to that stage. However, it also means that you can only proceed in The Provincial Court of Alberta. You may have heard the term “misdemeanor”. We don’t have misdemeanors in Canada, but it is a similar concept.

PROCEEDING BY INDICTMENT

If the prosecutor proceeds by indictment, then you have the option to proceed either in The Provincial Court of Alberta or at The Court of Queen’s Bench. It also means the potential for penalty is much greater. Some serious charges in the Criminal Code are straight indicatable such as murder, robbery, and kidnapping.

WHERE WILL MY APPEAL BE HEARD?

This depends on whether the appeal is a summary conviction appeal or an indictable appeal. If the criminal matter proceeded in the lower court by way of summary conviction, then the appeal will be heard as a Summary Conviction Appeal. Summary Conviction Appeals are heard at The Court of Queen’s Bench. If the matter proceeded in the lower court as indictable, then the appeal will be heard at The Court of Appeal of Alberta.

WILL I STAY OUT OF CUSTODY DURING MY APPEAL?

It is possible to apply for bail while your appeal is before the Court. This is called “bail pending appeal.” Your lawyer will have to make an application to seek bail while you are in the process of an appeal. In order to be successful, there are three factors the Court will consider:

• There Is A Possibility That The Appeal Will Be Successful
• It Is Not Contrary To The Public Interest To Release The Person Pending Appeal
• That The Person Will Surrender Him Or Herself On Or Before The Date Of The Appeal Hearing

IS AN APPEAL A RE-TRIAL?

No. Appeals are not re-trials. Appeals focus on any error potentially made by the trial judge. Your lawyer will work from the appeal record and the body of appeal law in order to argue that the trial judge erred (if you are the appellant). If you happen to be the respondent, your lawyer will argue that the trial judge did not make an error and is essentially defending the trial judge’s decision.

Usually, the evidence at the trial is not in issue. Under usual circumstances, the appeal court does not hear witnesses or receive any new evidence. An appeal court will not usually interfere with the trial judge’s findings of on credibility. Credibility refers to whether or not the trial judge believed or disbelieved a witness.

WHAT HAPPENS AT AN APPEAL?

After the appeal record (or trial transcript) has been received, your lawyer will write the legal argument. This is called a factum. Appeal courts require both the written argument and then an oral argument to be presented at the hearing. The opposing lawyer will also rely on a written and oral argument. After all arguments are heard, the appeal court will render a decision. However, it is not typical to learn of the decision on the same day. It can take some time to receive the appeal decision.

POSSIBLE DECISIONS AN APPEAL COURT MAY RENDER

On conviction appeals, the appeal court can order a new trial. This will happen if the appeal court decides that the trial judge made a legal error or that the trial was not conducted fairly. If a new trial is ordered, it will not happen before the same judge as before. The prosecutor will also have to decide if the matter should be re-prosecuted.

Another possibility is that the appeal court can direct an acquittal. This can only happen in limited circumstances. This happens when an appeal court sets aside the guilty finding and orders an acquittal be substituted.

Finally, on sentence appeals, the appeal court can vary a sentence. A sentence variation can lower a sentence or order a sentence be served in a different way. Serving in the community would be a sentence variation. An example of this would be a Conditional Sentence Order. Sentences may also include various court orders such as requiring a person to give DNA or a prohibition of some sort. These court orders may also be impacted on a sentence appeal.

PICKING THE RIGHT APPELLATE LAWYER

Appeals are complex and require critical attention to detail with respect to what happened at trial and how the law should be applied at trial. Hypercritical detail is needed to also follow all of the rules required to successfully launch or respond to an appeal due to the special rules applied by the higher appellate courts. Ensure your lawyer has the experience and skills to launch your appeal or respond to an appeal launched against you.

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