Appeal deadlines for filing and service are very short. Depending on the jurisdiction and type of matter, you may only have a few weeks or even days to file an appeal, so you must act quickly. Failing to meet a deadline could be fatal to your appeal.
Appeal deadlines, forms and procedure may vary so it is vital that you check the Criminal Rules of Court in your jurisdiction as soon as possible after you receive a judgment on your case to determine your appeal deadline.
If you are acting without the assistance of a lawyer, you may be able to find helpful information and “how to” advice on the appeal court’s website. Staff in the appeal court’s registry office can also provide advice about appeal procedures. Procedures will vary somewhat from one appeal court to another and each appeal court has its own set of Rules that set out what is required on an appeal. See Resources.
- 11.1 What is an Appeal?
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Once you have received the judge’s or jury’s decision / order regarding either the verdict or the sentence, you might want to appeal it. You can appeal your conviction, your sentence, or both. An appeal is where you argue in a higher court that the court that made the decision in your case made an error (usually in misapplying the law to the facts of your case). The decision to appeal should not be taken lightly. Making an appeal can be timely and costly. It is important to get legal advice. A lawyer can help assess the probability of success if you were to appeal a decision.
An appeal is not a new hearing or a new trial. There are no affidavits, witnesses or juries. The job of the appeal court is to decide if there were any legal or factual errors made at the trial or in the judgment, and whether the errors had an effect on the outcome.
It is not enough to be unhappy with the result of a trial. In order to succeed on appeal, you must show that the judge’s decision was unreasonable or cannot be supported by the evidence, the judge made a mistake about the law, or there was a miscarriage of justice.
Mistake about the facts: This is when the evidence given at trial was misunderstood by the judge or the judge drew an improper inference from it. Appeals on mistake of fact are seldom allowed and a decision may only be overturned where it is found to be unreasonable or cannot be supported by the evidence. Generally, appeal courts will not disagree with a lower court’s decision about the credibility of witnesses.
Mistakes about the law: Generally, if the judge’s decision about the law is wrong, the case can be successfully appealed. When there is a jury, you may also be able to appeal if the judge made an error in their instructions to the jury.
- 11.2 Process of Appealing
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You can appeal the decisions of a judge by applying for an appeal to a higher-level court.
For example:
- A decision from a provincial / territorial, or superior trial court will need to appeal to the next level of court the superior appellate court in that province/territory. Some criminal cases, though, must be appealed from the provincial/territorial level directly to the court of appeal level. These tend to be cases where the trial court proceedings were by indictment.
- A decision from the superior trial court will be appealed to the court of appeal. A decision from a court of appeal can be appealed to the Supreme Court of Canada, but that requires leave from the Supreme Court. Leave is not necessary in some cases, such as where one justice dissents on a question of law in the court of appeal.
Leave to appeal
In some circumstances, you will need permission to bring the appeal. This is referred to as “leave to appeal”.
For example, when appealing to a court of appeal from sentence, you are required to obtain leave to appeal unless the sentence is one fixed by law. Another example of where leave to appeal is required, is where you have already appealed to a superior appellate court in a province or territory, but you are not satisfied with that court’s decision. You must obtain leave to appeal from that decision before a court of appeal will review the decision.
As a practical matter, some courts deal with the question of leave to appeal at the same time that the appeal is argued. You must have regard to the rules of the court to which you wish to appeal
Where a leave to appeal application is required in advance of the appeal, you will need to show that you have an arguable case that the judgment that you appeal involves a mistake of law or facts, in other words that the judge applied the wrong law or misinterpreted the law, applied the right law in the wrong way, misunderstood the evidence in a serious way or drew an improper inference from the evidence. However, even if you are able to show that there is a mistake of law or fact, the leave judge will still have to decide whether this is the kind of mistake that affected the outcome of your case and that your case is one that the appeal court should hear.
Documents
An appeal is started with a “notice of appeal”. The notice of appeal should set out the errors of law or fact on which the appeal is based. Generally, the court will only deal with the grounds set out in the notice of appeal. It is possible to later amend the notice of appeal to set out new grounds of appeal, but that should be done as soon as possible and well before the hearing of the appeal itself.
Depending on the rules of the appeal court, you might also need to file an appeal book. Appeal books generally include the notice of appeal, the information or indictment, the trial transcript and the list of exhibits from the original trial. Usually you should include the transcript from the trial or sentencing.
You might also have to write out your argument in a document referred to as a factum.
There are rules for how each of these appeal court documents should be formatted. You should have regard to those rules.
- 11.3 Appeal Hearing
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The person who started the appeal will speak first. The court will then decide if it is necessary to hear from the other side. If so, the other side will be given an opportunity to speak. After that, the person who started the appeal will have an opportunity to briefly address any new issue the other side raised.
In most appeals, judges will have:
- Written arguments (factums) of both parties; and
- Transcript (or parts thereof) of the proceedings before the lower-court judge that is / are necessary for the hearing of the appeal – including, final jury instructions in a jury trial, reasons for decision of the judge in a judge alone trial, judge’s reasons for decision on sentence.
The judges might ask you questions during your presentation to make sure they understand the case and what you are saying. If you submitted written arguments, you do not need to read them at the appeal hearing. Instead, you should briefly comment on why you think the lower court judge made a mistake and what you would like the appeal court to do. The judges will either give a decision at the end of the hearing or will reserve their decision.
New evidence
Generally, new evidence is not allowed to be presented on appeal. The appeal hearing is based on the record of the previous trial or hearing. If there is evidence you think the court should have which was not presented at the trial or hearing, you must ask for permission to refer to that new evidence. The onus is on you to establish why the court should receive the evidence.
For it to be admissible on appeal, the evidence must be admissible under the normal rules of evidence. Also, you must demonstrate that the evidence is reliable and sufficiently convincing that it could reasonably be expected to have affected the decision at trial. You must also show that the evidence you want to present could not have been presented at the original trial (e.g. you didn’t know about it).
If you want to present new evidence, depending on the rules of the court you are appealing to, you may have to prepare:
- a notice of application or notice of motion; and
- an affidavit explaining why the evidence was not presented at trial and why you think it would have been important to the outcome of the trial.
You should attach the new evidence to your affidavit or include it in your affidavit. In general, the judge(s) hearing your appeal will also hear your application to present new evidence, and will decide on both your application to present new evidence and the appeal at the same time.
Time limits
There are strict deadlines that say when an appeal can be made. You should familiarize yourself with those deadlines and comply with them.
If you are outside those deadlines, and if you want to appeal, you will have to apply for an extension of time. Applications for the extension of time can be difficult. You should speak to a lawyer about your application. A judge of the court of appeal has the authority to extend the time to prevent an injustice.
If you want to apply to submit an appeal late, depending on the rules of the court you wish to appeal to, you will have to file and serve on the Crown:
- A notice of application / notice of motion to extend the time.
- An affidavit explaining why you did not start your appeal by the appeal deadline.
There may be a hearing that you will have to attend. If you are in custody, the court will arrange for an order to be issued requiring you to be brought to court at the right time. However, sometimes there might be an option to (or requirement only to) deal with matter in writing, or to appear by video conference or telephone. If your application for an extension of time is granted, you will have to file your notice of appeal in accordance with the order of the appeal court that issues.
- 11.4 Applying to have a Lawyer Appointed
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A judge can make an order that a lawyer be appointed for you under section 684 of the Criminal Code. Under this section, you have to show that it is in the “interests of justice” that you have legal assistance and that you cannot afford to pay for that assistance.
In determining whether it is in the interests of justice to order that funding for counsel be provided, the court will consider whether the appeal has merit and whether the appeal can be properly decided without the assistance of defence counsel.
To start your application, you must have already filed your notice of appeal in court. As a general rule, you must have applied for and been refused legal aid and done everything you could to appeal that refusal but still not have been given a lawyer.
Your affidavit should include reference to:
- How old you are;
- Your highest level of education;
- How good you are in English or French and how good you are at expressing yourself;
- How good you are at reading;
- How well you understand the law that relates to your appeal, and how well you can explain how that law relates to the facts of your case;
- How much experience you have with the criminal law and process;
- Why your appeal is so complicated that you think you need a lawyer to help you; and
- That you do not have sufficient means to obtain paid legal assistance, have made every effort to get a lawyer through legal aid, and have made every appeal available in the legal aid system.
You should attach to your affidavit any letters you have received from legal aid denying your application for a lawyer and your appeals to legal aid from those letters. If any letters from legal aid talk about the merits or chances of success of your appeal, you should leave out or blackout (redact) those portions if you wish.
File the [notice of application / notice of motion] and your affidavit in court. You will need an extra set of photocopies for each person or organization you have to serve. You will have to serve a copy of your filed application and affidavit on those parties set out in the rules in your jurisdiction.
The rules of the court to which you are appealing will govern how the application will proceed. In most cases, you must attend this hearing but, if you are in custody, arrangements might be made for you to be brought to court or to participate by video conference or telephone.
- 11.5 Applying for Bail
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If the person appealing a conviction or sentence is in custody, a judge of the court of appeal has the authority under the Criminal Code to order him or her to be released from custody until the appeal has been heard and decided. For more details see section 679 of the Criminal Code.
To start your bail application, you must have already filed your notice of appeal.
You should talk about three things in your affidavit:
- Why the appeal is not “frivolous”, or totally lacking merit (if you are appealing your conviction) or how your appeal has sufficient merit that it would cause unnecessary hardship if you were detained (if you are appealing your sentence);
- You will surrender yourself into custody in accordance with the terms of the order. In other words, that you are not a flight risk; and
- How your detention is not necessary in the public interest, e.g. you are at a low risk of committing an offence while on release.
You should also talk about anything else you think is important for your application. The burden of convincing the Court to release you is on you. You have already been found guilty so there is no longer a presumption of innocence.
Subject to the rules in your jurisdiction, you will need to follow these steps to apply for bail:
- Complete and file thenoticeofapplication / noticeofmotionandyour
- File the decision of the judge on your sentence, and any pre-sentence
- Draft and submit the bail order you would like the court to make.
You must attend this hearing but, if you are in custody, arrangements might be made for you to participate by way of video conference or telephone. The court will arrange for an order to be issued requiring you to be brought to court from custody at the right time.
If your appeal is against only the sentence
Because your appeal is only about your sentence, you can only be released on bail if leave to appeal the sentence has been granted. It is therefore necessary that you first ask a judge to give you permission to appeal. This request is typically made at the same time as the bail application is heard.