Can I Appeal This?
by Tushar K. Pain
You believe that you were wrongly convicted or sentenced too harshly. You want to appeal but you have many questions: How does the appeal process work? What exactly is an appeal? What will an appeal get me? How long does it take? These are common questions that are asked before deciding to appeal.
Generally speaking, an appeal must be started within thirty days after sentencing. This is done by filing a notice of appeal. Following this, transcripts of the trial proceedings must be ordered and filed with the appeal court. Written arguments must be provided as well. Once this is done, a hearing date will be scheduled for oral argument.
If you are serving a sentence, an application for "bail pending appeal" may be required as well. If successful, this application temporarily "stops" the sentence until the appeal is determined.
The length of time required to get to the hearing stage of the appeal depends on many factors including where the appeal is launched, which level of court the appeal is being launched in, the length of the original trial proceedings, whether the appeal relates to conviction, sentence, or both, and the time required for the oral hearing.
Once the appeal is heard, the decision may be given immediately or it may be "reserved". If it is reserved, that means the court wants some time to consider the issues before giving a decision. The decision will be given at a later date.
The nature of the original proceedings will determine which court you must appeal to. If the case proceeded by way of summary conviction (these are considered to be less serious matters), then the appeal must be launched in the Superior Court of Justice. If the case proceeded by way of indictment (these offences are more serious), then the appeal must be launched in the Court of Appeal for Ontario.
An appeal is not a re-trial. The appeal court will not re-hear your case. It is there to determine whether any legal errors were made during your original trial. Generally, the concern of the appeal court is more with how the decision was reached as opposed to the decision itself.
If you are appealing a sentence, the appeal court must be persuaded that the sentence was either demonstrably unfit or there was a legal error in determining the appropriate sentence.
If an appeal is successful, the appeal court will generally either order a new trial or enter an acquittal. An acquittal is usually only granted in rare cases where the conviction is held to be unreasonable or unusual circumstances exist. Generally, the best one can hope for is a new trial.
In some instances, the appeal court may even find that there was a legal error committed at trial but still dismiss the appeal. This will occur where the appeal court is of the opinion that no substantial wrong or miscarriage of justice has occurred.
In a sentence appeal, the appeal court will consider the fitness of the sentence and has the power to change the sentence originally ordered by the trial court.
Successful appeals are the result of thorough preparation, an intimate knowledge of the law, facts and procedure, a keen interest in the client’s case, and imagination.
Whether or not an appeal is the right course of action for you is a decision best made in consultation with an experienced criminal lawyer.
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