When you are found guilty of a criminal offence, the court will sentence you. If you think the sentence you were given is unreasonable, or errors were made during your sentencing, you can pursue a sentence appeal. You can also appeal your conviction if mistakes were made during your trial.
In law, an appeal is defined as ‘an application to a higher court for a decision to be reversed’. In other words, you are asking a higher court to review the decision of a lower court, in the hope that the decision is altered in your favour.
Types of Appeals:
There are two types of appeal:
- Sentence appeals
- Conviction appeals
You can appeal your sentence, your conviction, or both.
The biggest difference between a criminal appeal and other types of appeals is that the former can result in your conviction being reviewed by another court, which could lead to lighter or more severe punishment than what you originally received.
When appealing a guilty verdict, it’s important for any defendant who feels they were wrongfully convicted at trial because there are many ways an attorney may be able to find errors committed during proceedings where their client was judged largely upon evidence outside his control.
What is a sentence appeal?
A sentence appeal is when the defendant or the prosecution disagrees with the punishment that has been handed out. Typically, the defence will say that the penalty is too severe, while the prosecution will claim that it is too lenient.
What is a conviction appeal?
A conviction appeal is when the defendant disagrees with the ‘guilty’ verdict passed by the court. The appeal is made on the basis that mistakes were made during court proceedings, and this could have altered the outcome.
What happens if the accused is found not guilty?
If the accused is found not guilty, the Crown Prosecution can appeal the acquittal. The basis for the appeal is the same – that mistakes were made during court proceedings, and this could have altered the outcome.
Appealing a criminal sentence in Canada
In a sentence appeal, you are effectively saying that the sentence you have been handed is not correct.
Who can make a sentence appeal?
You can make a sentence appeal if –
- There has been a material error that has impacted the sentence, meaning the sentence would have been different, were it not for the error
- The sentence is demonstrably unfit, meaning it is obviously too harsh
Where there has been a material error, the appeal court will assess the fitness of the sentence by conducting its own sentencing analysis. If the sentence is unfit, the court may vary the sentence and impose a more suitable punishment.
Even where there is no error, or the error had no impact on the sentence, an appeal can still be made if the sentence is demonstrably unfit.
Appealing a criminal conviction in Canada
In a conviction appeal, you are challenging the guilty verdict. Again, this is on the basis that some kind of mistake was made. The legal process for appealing a decision in criminal cases starts with filing an appeal within 30 days of the sentencing hearing.
An appeal is not the same thing as a trial, so witnesses will not be called. Evidence will only be heard in exceptional circumstances.
Once the arguments have been presented the court will make a decision as to how to proceed. There are various possible outcomes, and the court may choose to overturn your conviction, offer a more lenient sentence, order a re-trial or uphold your conviction/sentence.
Who can make a conviction appeal?
You can make a conviction appeal if –
- The trial judge applied the law incorrectly during your case
- Evidence was used which should have been excluded
- The evidence did not prove your guilt beyond reasonable doubt
- The judge made a mistake when giving directions to the jury
- A member of the jury was biased
How long is an appeal period in Canada?
If you want to make an appeal in Canada, you must act quickly. You have just 30 days to file a Notice of Appeal at the appeal court. The clock starts on the date of the decision, whether that’s the verdict or the sentence.
Once the Notice of Appeal is filed, the court gets transcripts of your trial (for a conviction appeal) or your sentencing hearing (for a sentencing appeal). Both you and the Crown enter a factum. This is a written document that sets out your legal argument for the appeal.
Next, the appeal court sets a date for a hearing. During this, each side presents its case orally. There are no witnesses as it is not a trial. The appeal court then decides whether or not to uphold your verdict or your sentence.
What happens if your appeal is successful?
If your conviction appeal is successful, the court will usually order a re-trial, although it may choose to acquit you instead. If your sentence appeal is successful, then your sentence will be varied.
Can an appeal increase a sentence?
It is possible that an appeal will result in an increased sentence. However, the court will only do this where appropriate. It will not increase your sentence as a penalty for bringing an appeal that is ultimately unsuccessful. A sentence will only be upped where the appeal court believes that the original sentence is unduly lenient.
What is a good sentence for appeal?
That is why you should only appeal a sentence if you have strong grounds for appeal. Either, you must be able to show that the sentencing judge made a mistake, or that the sentence is too harsh. Our Vancouver appeals lawyers can explain whether you have grounds for an appeal. Otherwise, your appeal will be dismissed by the court.
How often are appeals successful in Canada?
The Supreme Court of Canada is the last resort when it comes to appeals. Statistics show that of the 130 appeals heard by the Supreme Court of Canada from British Columbia between 2009 and 2020 (inclusive), 61 were dismissed and 55 were allowed. The key to success is having strong grounds for appeal and a watertight factum.
A particularly notable conviction appeal in Canada’s history is that of Donald Marshall Jr. He was falsely convicted of murdering his friend, Sandy Seale, in 1971. After spending a decade in prison, he was cleared by the Nova Scotia Court of Appeal. He was eventually awarded $1,500,000 as compensation for his wrongful conviction.
See appeal cases our lawyer worked on recently
When does the crown drop charges?
If you appeal your conviction and the court says there is no evidence to prove your guilt, then you may actually be acquitted. This means that your guilty verdict is changed to one of not guilty and you are a free person.
Before your trial, the Crown may decide to drop the charges against you if:
- You agree to enter into a peace bond
- You agree to plead guilty to a different charge
- You prove that the evidence against you has been unlawfully obtained and cannot be used in court
Stay of proceedings BC
An appeal is not the same thing as a stay of proceedings. A stay of proceedings is when a criminal trial is halted. This might happen because:
- If the trial continues, it would breach the accused’s Charter Rights in some way; or
- The lawyers and/or judge decide that it would be better to halt the trial, rather than proceed
What happens next really depends on the circumstances. The trial may be reactivated, or it may be discontinued. If the latter happens, you can request file destruction. This ensures that it does not show on any background checks, such as those carried out by employers.
Contact an experienced Criminal Lawyer
Making an appeal is a complex task. It requires an in-depth understanding of the law, along with the ability to meet tight deadlines. That is why you should ask an experienced defence lawyer to act on your behalf.
At Mickelson & Whysall, we can pursue an appeal to get your conviction or sentence varied. To find out more about how we can help, contact us now and speak to one of our appeal lawyers.
Call a Vancouver Criminal Lawyer at 604-688-8588 now!
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[article originally published in 2019, has been rewritten and updated in 2022]