Understanding

1. Understanding Appeals and the Appeal Process

2. The Appeal Process An appeal is not a second opinion! An appeal court is not interested in complaints regarding a trial court's final decision. Appeals must be based on specific errors that were made at trial. The law concerning what kinds of errors can ground a successful appeal is complex and subtle. An appeal resulting from a criminal trial can concern: i) the conviction itself, or ii) the sentence imposed. The appellant must give notice of intention to appeal.

3. The Crown can also appeal a case. The Crown might ask that an acquittal be overturned, or they may appeal a sentence that appears to be too light. One cannot appeal individual rulings of a trial judge as the trial goes along. Only at the trial’s conclusion can any complaints be taken to the appeal court. This means that a typical appeal often includes several complaints, or "grounds". The person, or side, appealing is called the "appellant". The other person, or side, is called the "respondent". To what court does one appeal a case? This depends on the original charge, and whether it was "summary" or "indictable".

4. Summary Conviction Appeal Court Appeals from trials of summary offences are regulated by Part XXVII (Part 27) of the Criminal Code. Appeals go first to the "superior court" of the province. B B.C.  Supreme Court, Ontario  Ontario Court, General Division. The accused can appeal against conviction. The Crown can appeal against acquittal. Either side can appeal against sentence, or a verdict of "unfit to stand trial" or "not criminally responsible" on account of mental disorder.

5. Indictable Conviction Appeal Court These come under Part XXI (Part 21) of the Code. They go straight to the Court of Appeal The appeal may be allowed if the verdict is unreasonable or cannot be supported by the evidence, or is based on a wrong decision on a question of law, or amounts to a miscarriage of justice. NOTE:Even where there is an error of law, the appeal may fail if it has not led to a substantial wrong or miscarriage of justice. The accused has an absolute right to appeal against conviction on questions of law, but must get leave to appeal on matters of fact, or "mixed law and fact", or on any other ground.

6. Indictable Sentence Appeal Court The accused must get leave to appeal against sentence. The appeal can be on a question of law, or a complaint that the sentence is "unfit". There can be no appeal against a sentence that is fixed by law. Note: The Court of Appeal can increase the sentence, even when the complaint being made is that the sentence was too tough! (Not usually done unless the Crown itself is also complaining.)

7. Points to Note: The Court of Appeal usually sits in panels of three judges. For especially important and contentious matters, the Court may sit in a panel of five judges. The result of an appeal against conviction will usually be either: • i) dismissal, • ii) acquittal, or • iii) an order that there be a new trial.

8. Supreme Court of Canada For indictable offences, appeals from the highest provincial courts (Courts of Appeal) go to the Supreme Court of Canada in Ottawa. One has a right to this if: i) a judge of the provincial Court of Appeal disagreed with that court's majority decision on a point of law, or ii) if one’s original acquittal was overturned and a conviction was substituted. The Supreme Court of Canada may grant leave to appeal to it, if it thinks a question of law raised is sufficiently difficult or important.