Criminal apeals
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Clients considering whether to appeal their conviction or sentence often have questions about process, timeline, and chances of success. Here are answers to the most common questions we hear from clients deciding whether to pursue an appeal:
Understanding criminal appeals in ontario
What is a criminal appeal?
A criminal appeal is your legal right to ask a higher court to review and potentially overturn a decision made by a lower court. If you were convicted at trial or received a sentence you believe is unfair, you can appeal your conviction or sentence.
The venue for your appeal depends on the type of offence. Summary conviction offences are appealed to the summary conviction appeal court in the local Superior Court of Justice, often in the same city or town as the trial court. Indictable offences are appealed to the Court of Appeal for Ontario, located in downtown Toronto. Most of Rudnicki & Company’s cases are at the Court of Appeal for Ontario. Our Toronto office is located a short walking distance from the court.
There are two main types of appeals. A conviction appeal challenges a guilty verdict, asking the appeal court to enter an acquittal or order a new trial. A sentence appeal challenges the fitness of the sentence, asking the appeal court to reduce the sentence or substitute it with a different one.
What grounds can there be for an appeal?
There are three types of appeal against conviction: unreasonable verdicts, legal errors, and miscarriages of justice. An unreasonable verdict happens when no reasonable trier of fact could have convicted the accused, or when a judge has done so for irrational or illogical reasons. A legal error happens when a judge applies the wrong legal test in admitting or using evidence that is part of the case, or when a judge instructs the jury incorrectly on a point of law. A miscarriage of justice is a residual category reserved for errors that go to the fairness of the trial or the reliability of the verdict. For example, where someone enters a wrongful guilty plea, it must be set aside as a miscarriage of justice.
A sentence can only be challenged on one of two grounds: manifestly unfit or tainted by error in principle. A sentence is manifestly unfit where it clearly and unreasonably departs from similar sentences imposed in similar cases. An error in principle is a legal error by the trial judge that has an impact on the sentence they impose.
If I appeal, could I get a worse sentence?
No. If an appellant loses their appeal against conviction or sentence, then all that happens is the prior order is affirmed. Unless the Crown launches a cross-appeal, an appellant cannot receive a worse sentence than they received at trial.
Can the Crown appeal my acquittal, or appeal to increase my sentence?
Yes. The Crown has more limited rights of appeal than defendants, but can still seek to have acquittals overturned or sentences increased on appeal. In some cases, an appellate court can even enter a conviction on appeal. If the Crown is appealing your case, it is very important to seek qualified counsel to defend you.
Can I get bail while my appeal is pending?
Yes. The test for bail is stricter on appeal than it is at trial because the presumption of innocence has been displaced by a finding of guilt. But defendants who were successful on bail at trial and have no criminal record are generally good candidates for bail pending appeal. There are other important differences between trial and appeal bail, including a requirement for a formal motion in the appellate court and regular extensions of the bail as the appeal makes its way through the system.
Our approach is to prepare the bail pending appeal motion in advance and list it for argument the same day as the sentence is scheduled to be imposed. That way, once a sentence of imprisonment is passed in the morning, we can argue the bail the same day and secure our client’s release by the afternoon.
Incarceration has a tremendous impact on a person’s life. We understand that it is crucial to reduce or eliminate any time spent behind bars.
What to expect from the criminal appeal process in ontario
How long do I have to file an appeal?
Appellants have 30 days to file their notice of appeal from the date sentence is imposed. A lawyer may file a notice on your behalf, or you may file a notice of appeal yourself. If you need more time to decide whether to appeal or which lawyer to retain, you should file the notice yourself using Form 12. Filing a notice of appeal in a criminal case is free and can be done by email.
Once the notice is filed, a lawyer you retain later can replace it with their own. Or, if you decide not to pursue the appeal, you can file a notice of abandonment.
If you fail to file a notice and later decide to appeal, you would need to bring a motion to extend time to file. These are costly and difficult motions that can be entirely avoided by simply filing a notice within the appeal period. If you are unsure about whether to file a notice, call or write us and we can give you specific advice tailored to the circumstances of your case.
How long does a criminal appeal take in Ontario?
Most criminal appeals take 12-18 months, from the date sentence is imposed to the date the appeal is decided. This number can change depending on the complexity of the case, the length of the trial, the case load of counsel conducting the appeal, and how long it takes the court to decide the appeal once it is heard. In our office, it is unusual for an appeal to take longer than two years.
What happens at the appeal hearing?
Unlike a trial, an appeal is not a re-hearing of your case with new evidence or witnesses. Instead, the appellate court reviews the transcripts and exhibits of the trial to determine whether the verdict was unreasonable, the product of legal error, or resulted in a miscarriage of justice. Hearings typically take 2-3 hours and consist only of the lawyers’ submissions. Depending on the venue, the appeal will be heard by one judge (for summary conviction appeals in the Superior Court), three judges (for indictable appeals to the Court of Appeal for Ontario), or nine judges (for appeals in the Supreme Court of Canada). For an example of what an appeal hearing can look like, you can watch one of lead counsel Chris Rudnicki’s appeals in the Supreme Court in the archived webcast.
Do I have to go to my appeal?
No. While anyone may attend a criminal appeal (or watch it via Zoom), unlike a trial, it is not required that the appellant themselves attend. The choice is yours.
Criminal appeal costs and outcomes
What are the costs of a criminal appeal?
Costs vary in criminal appeals based on two factors: (a) the length of the trial and (b) the complexity of the issues. Appellants are required to produce transcripts of the trial proceedings from an authorized court transcriptionist (“ACT”) as part of the appeal process. These costs are fixed at a rate per page. For a full day of trial, transcripts routinely cost upwards of $1,000. Complex issues require more time to research, write, and argue. A shorter, simpler trial will cost less to appeal than a longer, complicated one.
Special motions can add costs to an appeal. These include applications for bail, motions to introduce fresh evidence that was not admitted at trial, or complex procedures like cross-examining trial counsel in an ineffective assistance of counsel claim.
For a specific estimate about the costs of your case, please schedule a consultation with one of our lawyers.
What are my chances of winning an appeal?
The truth is that criminal appeals are the most challenging area of criminal law. Scroll through the criminal cases on the Court of Appeal’s website and you will see that few appeals are successful. This is because our justice system has a strong bias in favour of finality in criminal proceedings.
This general fact about criminal appeals is no substitute for a specific opinion about your case. If your trial was unfair or your sentence was unjust, it is your right to appeal. At Rudnicki & Company, we have helped dozens of clients to overturn their convictions, set aside their guilty pleas, or reduce their sentences. We are respected voices at the Court of Appeal and leave no stone unturned in the search for the best grounds of appeal possible. Call or write us today for an honest assessment about the merits of your case.
What are the possible outcomes of a criminal appeal?
In a conviction appeal, there are three possible outcomes: (1) the appeal is allowed, the conviction set aside, and an acquittal entered; (2) the appeal is allowed, the conviction set aside, and a new trial ordered; or (3) the appeal is dismissed. In successful appeals, the most common outcome is that a new trial is ordered. That is because in most cases, the right remedy is not an outright acquittal, but a fair trial. In some cases, for example where the evidence is so weak that no judge could reasonably convict, or where a successful Charter argument excludes key evidence for the Crown, appellate courts have the power to enter an acquittal and end the proceedings then and there.
In a sentence appeal, there are two possible outcomes: (1) the appeal is allowed and the sentence is reduced; or (2) the appeal is dismissed. In rare cases, the appellate court can dismiss the sentence appeal but decline to send a worthy appellant back to jail.
What happens if I lose my appeal?
Appellants who have been serving their sentence pending the appeal will experience no change. They will continue serving their sentence as imposed by the trial judge. Appellants on bail pending appeal will be required to surrender into custody. Their sentence will resume from the point they were granted bail.
In either case, unsuccessful appellants will want to consider whether to pursue a further appeal. There is no right to a second appeal in Canada. Unsuccessful appellants in the summary conviction appeal court must seek leave to appeal to the Court of Appeal for Ontario. Unsuccessful appellants at the Court of Appeal must seek leave to appeal to the Supreme Court of Canada. Leave is decided based on the broader public issues at stake in the appeal and is rarely granted.
Can I use my trial lawyer for my appeal?
Certainly. Any licensed lawyer can represent a client in an appellate court. But few criminal trial lawyers also practice appeals. Appellate practice is complex and highly specialized. Be sure to ask any lawyer you are considering about their experience in appellate practice before making a decision.