Disclaimer: The contents and legal materials on this site are intended as general reference only. The information provided is not intended as legal advice. Laws change and every situation is different. Please consult a lawyer before taking any action. Criminal Appeal Information Table of Contents Criminal Appeals in Canada Why Do I Need a Lawyer? How Do I Appeal? What Can Happen on a Conviction or Sentence Appeal? Can My Sentence be Increased if I Appeal? What If I Missed the Appeal Deadline? Can I be Released on Bail Before my Appeal is Heard? How Do I Apply for Release Pending My Appeal? How Do I Choose an Appellate Counsel? Legal Aid Coverage For Further Assistance Criminal Appeals in Canada If you were convicted of a crime and a mistake was made or if your sentence was too heavy, then, you may appeal your case. When you appeal, you ask a higher Court to look at what was done by the lower Court. An appeal is in effect, a "trial" of the trial. Lawyers who just do appeal work are referred to as appellate counsel. Why Do I Need a Lawyer? Your appeal will focus on mistakes that were made in your case. Not just any error will do. It must be one that the Court of Appeal believes was serious enough to have affected the outcome of your trial or sentence. On an appeal, written legal arguments are prepared by the lawyers and then filed with the Court. You will need the help of an appellate counsel to identify the legal problems at your trial or on your sentence, to prepare the written legal argument and then to appear before the court in order to convince it (oral argument) that mistakes were made at your trial or sentencing. Although you may represent yourself, unless you are legally trained and you can be "objective", it is generally unwise to do so. Studies in Canada and the United States have shown that persons represented by lawyers are as many as six times more likely to win their appeals than persons representing themselves. In most cases your appeal is your last chance to fix any mistakes that were made at trial. For that reason you need experienced help to win. How Do I Appeal? In order to appeal your conviction or sentence, a Notice of Appeal must be prepared and filed with the proper appeal court, usually with 30 days from the date on which you were convicted or sentenced. The preparing and filing of your Notice of Appeal on time is a very important first step. What Can Happen on a Conviction or Sentence Appeal? If your appellate lawyer succeeds in convincing the Court of Appeal that mistakes were made, the Court can overturn your conviction and acquit you or order a new trial. If the Court is not convinced that a serious mistake was made, it will dismiss your appeal. On sentence appeals, the Court can reduce your sentence. For example, if you were sentenced to jail, the Court could reduce the length of your sentence or reduce it to time served. If the Court does not believe the sentencing judge made any mistakes, it will dismiss your appeal. Can My Sentence be Increased if I Appeal? In Canada a Court of Appeal can increase as well as reduce a sentence on appeal. However, unless the Crown has specifically filed an appeal against your sentence or given you written notice that it will be seeking an increase to your sentence, there is usually no danger that your sentence could be increased as a result of your own appeal. However, special circumstances are possible which could trigger a Crown appeal and therefore you should always obtain legal advice concerning any appeal. What If I Missed the Appeal Deadline? Even if you missed the filing deadline, your appellate lawyer can take special steps to ask permission to file your Notice of Appeal late. Provided there is a reasonble explanation and the delay is not lengthy, the Court may permit you to proceed with your appeal. Can I be Released on Bail Before my Appeal is Heard? If you must wait in custody until your appeal is heard, there may be little practical purpose to appealing. For that reason the Criminal Code of Canada allows you to be released on bail until the Court decides your appeal. How Do I Apply For Release Pending My Appeal? If you have good grounds of appeal, your appellate counsel can apply for your release on bail. Generally your lawyer must give written notice to the Crown, order transcripts of certain parts of your trial proceedings and then, once those are obtained, prepare and file written argument and other special documents for use on the bail application. The Crown almost always opposes such applications and in most cases bail applications require special research and preparation. This is necessary for two reasons. First, to overcome Crown objections to your release and second, to convince the Judge hearing your bail application that you have good grounds of appeal and that, in your particular circumstances, you should be released. Once your bail is obtained, your appeal lawyer is usually placed under special obligations to give your matter priority and to move your appeal along as quickly as possible. How Do I Choose an Appellate Counsel? When selecting a lawyer to do your criminal appeal it is wise to remember that appellate advocacy (appeal work) is a very specialized area of legal practice. The odds are almost always against you on appeal and most lawyers do not do any appeal work at all or they do very little. In Canada, your legal opponent (the lawyer for the Crown) generally does nothing other than appeal work. For that reason you will want to consider choosing an appellate lawyer who is knowledgeable and experienced with appeal work. Remember, if things went wrong at trial or on sentencing, then, in most cases your only chance at correcting the situation will be on appeal. When appealing a serious criminal matter to the Court of Appeal you will need the help of capable, experienced counsel to be successful. 10 Questions You Might Ask How long has the lawyer been practicing criminal law? What type of appeals has the lawyer done before and at what level of court? What percentage of their practice is appellate work? Has the lawyer done your type of appeal before? If yes, how many or how often? Does the lawyer have advanced legal training beyond a basic law degree? If yes, in what area of law? Has the lawyer taken specialized legal education courses related to criminal appeals or criminal law? If yes, what type of courses were taken and how recently? Has the lawyer taught criminal law related courses at the university level, or has he or she been invited to speak or make presentations at criminal law related seminars or panels? Have any of his or her appeal cases been reported in the major Canadian criminal-law publishers such as the Canadian Criminal Cases, the Criminal Reports or the Motor Vehicle Reports? Has he or she published any criminal law related articles or other materials? Is the lawyer fully computerized and on the Internet, and do they use, or have ready access to good research assistants? Does the lawyer work in a well-established law firm with experienced support staff? Legal Aid Coverage If you cannot afford to privately retain an appellate lawyer, you may apply for legal aid. Legal aid coverage varies across Canada depending upon where you live. British Columbia, Alberta and Ontario use a private-bar or modified private-bar delivery model. Under all private-bar certificate systems hourly rates and the amount of time given to a lawyer to do an appeal on Legal Aid are restricted and there are often other important limitations. Serious questions have been raised across Canada about the ability of Legal Aid plans to provide adequate legal assistance [See for example R. v. Chan]. In June 2000, the Canadian Bar Association issued a national report called The Legal Aid Crisis: Time For Action concerning the problems with the Legal Aid system in Canada. There can be significant limitations with the extent of legal assistance provided by a Legal Aid plan. Therefore, if you must apply for Legal Aid assistance for your appeal, you should find out about the extent of the legal coverage provided and the nature of any limitations such as the amount of time for preparation or research placed upon the lawyer who will do your appeal. For Further Assistance If you would like assistance or advice concerning your appeal or for further information concerning appeals or appellate practice please contact Mr. Bloos or his assistant by email: bloos@appeals.ca or telephone 1-877-277-4766 (Edmonton, Alberta) or at 1-800-565-5415 (Grande Prairie, Alberta), to provide them with general background information and to arrange a telephone or in person appointment with Mr. Bloos.
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