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Appealing a criminal conviction

Region: Ontario Answer # 762

Appealing a conviction means asking a higher court to review your case to ensure that the court did not make any mistakes in deciding to convict you. Although there is generally no automatic right to an appeal hearing, in Canada, anyone found guilty of breaking the law may ask for an appeal against the conviction and/or the sentence. In addition, the Crown prosecutor also has the right to appeal against an acquittal or a sentence, even though their right is much more restricted than that of the offender.

 

When can you appeal?

Before an appeal is allowed, the accused must seek permission to appeal from the court. An appeal will only be granted in cases where a significant error in law was made. For example, if the accused can show that the judge made a legal error during the trial, that there was not enough evidence to support the conviction, or if the sentence ordered was far more onerous than usually given in similar cases.

If an accused wishes to appeal the decision based on the facts of the case, the appeal will not be allowed. For example, if the judge or the jury did not believe the accused’s evidence, or found the evidence of a Crown witness to be accurate, the accused will not be allowed to appeal the decision.

 

The appeal hearing

If the appeal is allowed, the Court of Appeal will set a date to hear the case. At the hearing, the Appeal Court will listen to oral arguments of both the person who has asked for the appeal, called the appellant, and the respondent.

The Appeal Court will determine if the trial was conducted properly, or if any legal errors were made. The court will review such things as whether the trial was fair, if any significant errors were made during the trial, was there sufficient evidence to support the conviction, did the judge direct the jury properly, and if the sentence was far out of the range of usual sentences for similar circumstances.

 

What decisions can an Appeal Court make?

There are generally five decisions the Court of Appeal can make:

  1. Dismiss the appeal. This means that, after hearing the evidence, the Appeal Court decides that the original trial was conducted properly, that the evidence supported the conviction, and that the sentence was appropriate.
  2. Order a new trial.  The Appeal Court may set aside the conviction and order a new trial if it finds that the trial was not fairly or properly conducted, or that a significant error of law was made.
  3. Find the accused to be guilty.  In cases where the accused was acquitted (or found not guilty), the Appeal Court may overturn this decision and find the offender guilty of an offence. In such a case, the Appeal Court will also sentence the offender. Overturning an acquittal is only available when the offender was tried by a judge sitting without a jury. Where a jury has acquitted the accused, the Appeal Court’s powers are limited to ordering a new trial only.
  4. Acquit the accused.  Where an accused was found guilty by a lower court, the Appeal Court may overturn that decision and find the offender not guilty of the offence. This generally happens where the Appeal Court finds that the evidence does not support the conviction.
  5. Change the sentence.  The Appeal Court may change the sentence by making it more or less severe, or by removing or adding penalties, such as a fine or probation. The Appeal Court will consider whether the sentence is fair and in keeping with sentences imposed in similar cases. In doing so, the court will consider several factors including the nature and seriousness of the crime, the impact of the crime on the victim, and the character and criminal history of the offender.

Appeals from convictions or sentences must be started at least thirty days from the date the sentence was imposed. If the accused is in jail for the conviction being appealed, he or she may request to be released on bail until the appeal is heard.  If bail is granted, the accused will be released on conditions imposed by the court.

If you have a criminal record and want to erase it, call toll-free 1-877-219-1644 or learn more at Federal Pardon Waiver Services. It’s easier than you think.

If you have been charged with any criminal offence, or to appeal a conviction, contact one of our preferred criminal law experts:

The Criminal Law Team

Calvin Barry Criminal Lawyers


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