Criminal Appeals – FAQ

Yes. In Canada you have the right to appeal a criminal conviction. It must be done in a timely matter. The essence of it is asking a higher court to review the judgement in the lower court.

Yes. In Canada you can appeal your sentence. The issue there is whether or not the sentence imposed by the court was fit and in accordance with the law and principal that applies to sentencing.

Yes. It is possible to appeal both conviction and sentence, In the ordinary course of events the conviction appeal would be heard first. If it is successful, there will be no need to turn to the sentence appeal. If the conviction appeal has been dismissed it is then possible to proceed with the appeal against sentence.

Yes. It is possible to apply for an extension of time to appeal but it’s not automatic. It is necessary to show there is reason for the delay and that otherwise it is in the interest of
justice to allow you to proceed late. So delay is not desirable but it can sometimes be overcome.

An appeal is not by itself a new trial. An appeal is what went on in the lower court usually on the transcript or other record proceedings there. One of the remedies that’s available if the appeal is successful is for the appeal court to order a new trial.

There are two levels of court that hear appeals: The Supreme Court of British Columbia and the Court of Appeal of British Columbia. The Supreme Court normally deals with what we call summary conviction appeals. The BC Court of Appeal deals with indictable offence appeals and in some cases summary conviction appeals that have already been heard once in the BC Supreme Court.

There are two courts which hear appeals in British Columbia. The BC Supreme Court and the BC Court of Appeal. The BC Court of Appeal is the highest court in the province. There are two types of criminal offences: summary conviction (less serious) indictable (more serious). If you seek to appeal a summary conviction, the first level of appeal is to the BC Supreme Court. It is then possible to seek leave to appeal to the BC Court of Appeal or even the Supreme Court of Canada in such cases. For indictable offences the first level of appeal is to the highest court, the BC Court of Appeal. It is then possible to seek leave to further appeal to the Supreme Court of Canada.

In the BC Supreme Court for summary conviction appeals for example a single judge. If it’s an appeal for a more serious offence known as an indictable offense then the court of appeal normally sits in a panel of no less than 3 judges.

Transcripts are a verbatim record of what was said in the trial court. A transcript is usually required to proceed with an appeal because an appeal is a review of what went on in the trial court.

Transcripts are necessary because the essence of an appeal is a review of what went on in the lower courts. Without that record the appellate court could not fulfill it’s role of reviewing what went on below.

Reasons for judgment are what the judge says explaining the result of the trial or other similar proceeding. In Canada we require that judges give reasons for their decisions.

There are a number of possible reasons for an appeal against a verdict by a jury. One of them is whether or not the instructions given to the jury were correct. Another is whether the evidence presented to the jury was properly admitted. Still another is whether or not the verdict is supported by the evidence or otherwise reasonable.

It is possible to appeal more than once. If you’re dealing with a less serious type of offence sometimes referred to a summary conviction offense may actually be 3 appeals: to the BC Supreme Court to the BC Court of Appeal and even to the Supreme Court of Canada. But the latter two would require leave or permission of those courts and that’s not an automatic process. In the case of indictable offences that is the more serious type of offences the first level of appeal to the BC Court of Appeal. From there there may be an appeal to the Supreme Court of Canada in Ottawa but once again leave to appeal is necessary for an appeal to that highest court.

Yes. It is possible to appeal the judgments of a court of appeal to the Supreme Court of Canada. However, for most cases, leave (or permission) of the Supreme Court of Canada is required and it is difficult to obtain such leave because the Supreme Court of Canada can only hear a few cases each year.

It is possible to proceed with any legal proceeding including appeals without counsel. However it is generally not desirable and in most cases it is essential to have counselto properly present an appeal.

A factum is a written argument that is required by the appeal courts in advance of the oral hearing. Usually both sides (the defense and the prosecution) file such written arguments.

It is possible to apply for bail pending the hearing of an appeal however the granting of bail is not automatic there are a number of considerations including the apparent merits or strength of the appeal and whether or not the court is satisfied that the appellant will comply with any conditions of release while the appeal is being determined.

There is no filing fee for an appeal however there are costs associated with obtaining the transcripts and appeal books and for the work done by council.

Most appeals are concluded within a period of several months to one year. However the circumstances of each case, including the amount of time required to obtain transcripts can affect that.

It depends on the grounds on which the appeal has been allowed. In a few cases the result is an acquittal and the effective end of the case. In other cases it may be an order for a new trial or some adjustment in the result at the trial court.

If the appeal against sentence allowed the appeal court can change the sentence and in most cases that would be the result that’s being sought on such an appeal.

It is possible to appeal a conviction based on a guilty plea, however that involves special inquiry into the circumstances under which the plea was entered. Ordinarily a guilty plea is intended to be a final indication of whether or not the person accepts that they are guilty of the charge.

It depends on the statistics that are examined. There have been some reports indicating that a significant number of appeals are allowed but the result in one case is not indicative of what it may be in another case.

The chances of success are determined by the strength of the grounds of appeal. Grounds of appeal mean reasons for complaint or questioning the judgement at the trial court. In ever case it’s necessary to do a careful assessment of what actually transpired in the trial court.