Criminal Appeals: A Primer
Any criminal lawyer will tell you it’s easier to win a trial than an appeal. But if you’re not ready to face the music after the court has found you guilty and passed sentence, your only hope is an appeal.
An appeal is very different from a trial. Witnesses are rarely called. The court relies on the transcript of testimony from the trial and written submissions of the parties. Each party is given limited time for oral argument.
In sentence appeals in the Ontario Court of Appeal, for example, the appellant must limit oral submissions to 30 minutes, the responding party to 20. The appellant gets another 10 for reply. These limits apply to all appeals except conviction appeals involving charges prosecuted by indictment.
While oral argument is the aspect most people are familiar with, it is usually the least important. More important are the written submissions. These are laid out in a factum, a highly structured document written according to convention and tradition.
Written submissions are key
Time and again the Ontario Court of Appeal has said that the factum is the most important part of the appeal. So it is essential to have a good one. Without legal training, it would be difficult to write a persuasive factum. This is one reason why a lawyer’s assistance is vital.
In the Ontario Court of Appeal, three judges hear your arguments. This is unlike a trial where there’s just one. However, for charges prosecuted by summary conviction, appeals from conviction and sentence of the trial judge are heard in Ontario by a single judge of the Superior Court of Justice.
Errors by trial judge
In an appeal, arguments are generally limited to allegation of error committed by the trial judge such as rulings on the admission of evidence. In an appeal from a jury verdict, the judge’s charge to the jury often comes under attack.
Where the appellant wants to argue that the judge got it wrong or that the accused was wrongfully convicted, he or she must prove that the verdict was “unreasonable” or not supported by the evidence. This is a very strict standard and will often require “fresh evidence.”
Types of appeal
For each of the three main categories of offences in the Canadian justice system there is a different appeal route.
The most benign convictions generally are those entered under provincial law. These do not result in a criminal record. In Ontario, these are governed by the Provincial Offences Act (POA) and include convictions for traffic violations, driving without insurance, and drinking under age.
There are two kinds of convictions under the POA: those under Parts I or II (for minor traffic offences and parking infractions), and those under Part III, which are for more serious offences. For convictions under Parts I or II, and for Part III convictions where the trial was before a Justice of the Peace, the appeal is to a judge of the Ontario Court of Justice. For Part III convictions where the trial was before a judge of the Ontario Court of Justice, the appeal is to a judge of the Superior Court of Justice.
Unless you apply to stay the fine payment order, you must pay the fine before launching your appeal. If your driver’s licence was suspended (eg, following conviction for driving while under suspension), and you wish to drive pending appeal, you must apply for a stay of the suspension order.
Another kind of conviction involves prosecutions conducted by summary conviction. Many offences under the Controlled Drugs and Substances Act and Criminal Code fall within this category, including possession of marijuana and most cases of drunk driving, simple assault, and theft or fraud under $5,000.
In Ontario, an appeal involving summary conviction proceedings is to the Superior Court of Justice.
In both provincial offence cases and criminal matters you must file your appeal within 30 days of the end of the trial. If you’re late, you can seek an extension.
The last, and usually most serious, kind of offence is one prosecuted by indictment. Appeals involving indictable offences, or hybrid offences prosecuted by indictment, are to the Ontario Court of Appeal. The notice of appeal must be filed within 30 days of the end of the trial.
Launching the appeal
To launch an appeal the first step is to file a notice of appeal. The notice must set out whether the appeal is against conviction, sentence, or both. Sometimes, the court must give permission before the appeal can even be heard. This is called “leave.”
The notice must list the grounds of appeal. The notice of appeal must be served on the Crown. That means that it must be sent to the Crown’s office within the time specified by the rules. Failure to meet the time limits may cost you the right of appeal.
After you have served the notice on the Crown, you must file it with proof of service at the appeal court.
Common grounds of appeal
You have to identify an error of law. Common ones include:
- judge improperly admitted evidence
- judge failed to give reasons for a decision
- judge failed to consider an important piece of evidence
- judge made a mistake in charging the jury
- verdict was unreasonable (no facts to support it)
- Crown asked improper questions in cross-examining the accused
- Charter rights of the accused were violated (e.g., illegal search by police) and the judge failed to give a proper remedy (such as excluding incriminatory evidence)
- judge was biased
Bail pending appeal
If you appeal your conviction or sentence, you can apply for bail pending appeal, that is, for release from custody until your appeal is decided. If you are out of custody, you can ask to have the conditions of your probation or conditional sentence suspended until a ruling on your appeal. Similarly, you can apply to hold off payment of a fine until the appeal is decided.
An application for bail pending appeal can be made after the notice of appeal has been filed. 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.
Order the transcripts
During every criminal trial in Canada, every word spoken by counsel, the judge or a witness is recorded on tape. In Ontario, to appeal a decision to the Court of Appeal, you’ll need five copies of the transcript of the proceedings. You’ll need three for a summary conviction appeal. Be prepared: transcripts may be expensive.
You must also contact the trial court and request the exhibits from the trial. They will send them to the appeal court. You may borrow them to make copies.
Write a factum
As the time for oral argument is limited, you’ll need to set out all your arguments in a factum. You must be able to prove every factual assertion in your factum by reference to something on paper: either one of the exhibits at trial or testimony in the transcripts. If you cannot point to proof, your argument will be rejected.
Similarly, your legal arguments should be supported by precedent (case-law). Unsupported arguments will not be taken seriously.
You’ll need five copies of the factum for an indictable appeal, and three for a summary conviction appeal.
Appeal books and books of authorities
You must also assemble the following additional materials:
- Appeal Book: contains copies of all the exhibits capable of reproduction, including photographs and diagrams. Prepare an index and number the pages.
- Book of Authorities: contains a copy of every case relied on in the factum. Separate the cases by numbered tabs and prepare an index. Draw the judge’s attention to the passages you’re relying on by “sidebarring,” that is, drawing a line in the margin beside the relevant passage.
You will need the same number of copies of the appeal book and book of authorities as you do of factums.
Perfect the appeal
Once you have all the necessary copies of the transcripts, factums, appeal books and books of authorities, you are ready to “perfect” your appeal. This requires serving all the documents on the Crown, and then filing proof of service, along with three copies of the appeal book, books of authorities and factum in the Court of Appeal. (Only one copy of each is required for a summary conviction appeal.)
Proof of service is essential; the clerk at the court will not let you file without it. Proof of service can come by affidavit of service, an admission by telephone, or the receipt slip from a courier.
When you perfect the appeal, you may be asked to set a date for the hearing of the appeal.
In an appeal, you may want to bring evidence to the court’s attention that was not relied on at trial. To do so, you must file an application to admit “fresh evidence.”
There are four requirements which must generally be fulfilled before fresh evidence will be admitted on appeal:
- the evidence should not be admitted if, by due diligence, it could have been adduced at trial
- the evidence must be relevant, i.e., bear upon a decisive or potentially decisive issue in the trial
- the evidence must be credible (capable of belief), and
- the evidence must be such that, if believed, it could reasonably be expected to affect the result at trial
All of these criteria notwithstanding, where the evidence you wish to present for the first time on appeal is pivotal and proves your innocence, it will likely be admitted.
The Court generally receives fresh evidence in the form of written statements, documents or transcripts of cross-examinations. Although the appeal court can compel witnesses to testify before it, it’s more customary for the fresh evidence to be admitted by affidavit (sworn statement), accompanied by a transcript of cross-examination on the affidavit conducted by the other side.
Preparing for oral argument
The date set for your appeal will likely be a few months in the future. In the interim, you (or your lawyer) should become very familiar with all the documents you rely upon for your appeal – that means you should know the trial transcript backwards and forwards, and know the case law you rely on inside and out.
Arguing an appeal is different than conducting a trial – when you argue an appeal, most of your time is spent answering questions the judges ask. It is impractical to prepare argument that takes up all your allotted time; a good rule of thumb is to prepare to fill about half of your time, and brace yourself for the barrage of questions.
No one will be disappointed if you don’t use up the time allotted, but don’t expect to be given more than five minutes grace over your allotted time.
Responding to a Crown appeal
Sometimes, the Crown will decide to appeal. Crown appeals from an acquittal are limited to questions of law. The Crown may also appeal, on questions of mixed law and fact, from orders staying proceedings or quashing an indictment. With leave of the court, the Crown may also appeal against sentence.
Crown appeals are subject to the same procedural steps and time limits. That means it must serve you a notice of appeal within 30 days of the decision it’s appealing. You can then expect to receive a factum and other supporting documents later.
Appealing your appeal
If you (or your lawyer) thinks the decision reached by the appeal court is wrong in law, you may appeal to a higher court. If your appeal was heard in the Superior Court of Justice, you can appeal to the Ontario Court of Appeal. If your appeal was heard in the Court of Appeal, you may appeal to the Supreme Court of Canada.
The situations where a further appeal is permitted are few. You have a right to appeal further if a single judge on the panel that heard your appeal dissented, or if you were found unfit to stand trial or not criminally responsible. In most cases, however, you will need the permission of the Court (leave) to appeal further.
The possible outcomes of an appeal are limited by the Criminal Code. The Appeal Court can:
- dismiss the appeal
- order a new trial
- order that an acquittal be registered
- vary a sentence
Release pending a new trial
If your appeal is successful, you may be granted a new trial on all or some of the issues litigated at your first trial. If so, you may apply for bail pending your new trial. The test for release would be the same as at your original bail hearing. If you were detained pending your first trial, chances are you won’t get bail pending the second one.
Finding the right lawyer
An appeal is governed by different rules than a trial. There are lawyers who specialize in appeals. When choosing a lawyer, be sure to pick one with appellate experience. The Crowns who argue appeals in Ontario do nothing else, so it’s in your best interest to have a defence lawyer who is equally specialized.
Paying for an appeal
In Ontario, Legal Aid is available for criminal appeals. Before funding is authorized, however, a lawyer must provide an opinion letter assessing the merits of the appeal and its chance of success. If success is deemed unlikely, or the appeal does not raise an important issue of law, Legal Aid may be denied.
If you are paying privately, expect to more than for trial.
Friend of the court
If you cannot afford counsel to respond to an appeal by the Crown from your acquittal, and do not receive Legal Aid, the Crown and court may insist that you be represented by amicus curiae (a friend of the court). That means the court will choose a lawyer to represent you and make arguments on your behalf, at no cost to you. However, a lawyer acting as amicus does not have to take instruction from you; he or she is doing the court a service by raising arguments to counter the Crown’s.
Kerry Benzakein currently works as a federal prosecutor.