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In Canada, anyone found guilty of breaking the law may ask a higher court to review what happened at the trial. This review process is known as an appeal. An offender has the option to file an appeal against either the conviction, the sentence, or both. While the Crown also has the right to file an appeal against an acquittal or a sentence, their right to appeal is considerably more restricted than that of the offender.
The court in which the appeal will be heard can vary and it depends on the type of crime committed. For cases that usually result in less severe penalties, known as "summary conviction offences," the appeal process takes place in the Superior Court of Justice. The appeal is heard before a judge of that court in the community where the initial trial was conducted.
On the other hand, for cases associated with more severe maximum penalties, such as for a crime like murder, these are referred to as "indictable offences." Such cases are usually appealed to the Court of Appeal for Ontario, which is typically located at Osgoode Hall, 130 Queen St. West, Toronto.
When an appeal is filed against a conviction, the appeal court takes on the role of reviewing the manner in which the trial was conducted. This involves examining various aspects of the trial, for instance, the fairness of the trial proceedings and any significant errors that may have been made during the trial. The appeal court also considers the events that occurred during the trial to ascertain if there is substantial evidence to uphold the conviction.
Yes, the Crown has the right to appeal an acquittal or a sentence. However, it should be noted that the Crown's right to appeal is fairly limited and is not as comprehensive as the accused's right to appeal. For an appeal to be lodged, the Crown must be able to demonstrate a significant error of law, which may arise, for example, when crucial evidence is erroneously excluded during the trial. The Crown also has the authority to appeal the sentence, but such appeals are strictly limited. The reason behind this is that appeal courts are generally hesitant to interfere with the trial judge’s decision on sentencing.
When there's an appeal against the sentence, the nature of the crime, its impact on the victim, the background of the offender, and the sentences given in similar cases are all assessed by the appeal court. This is done to determine whether or not the sentence given is fair.
A hearing takes place after the transcripts of the trial become available and an appealing book and factum are prepared. At this point, the Court of Appeals sets a date to hear the appeal. During the hearing, the appeal court listens to the oral arguments presented by both the appellant and the respondent.
The appeal court can make a variety of decisions.
It may dismiss the appeal if the trial was properly conducted, the evidence supports the conviction, or an error was not significant. In situations where the appeal is against a sentence, the appeal court might dismiss the appeal given that the sentence fits the crime.
The appeal court also has the power to set aside the conviction and order a new trial if it determines that the trial was not conducted fairly or properly. Similarly, it can set aside an acquittal and order a new trial in cases where there is a substantial error of law.
In a small number of cases, the appeal court may overturn an acquittal, find the offender guilty of a crime, and then sentence the offender. This power to substitute a verdict of guilt is only applicable when the offender has been tried by a judge sitting without a jury. In cases where a jury has acquitted the accused, the appeal court's powers are limited to ordering a new trial.
If the evidence doesn't support the conviction, the appeal court may find the offender not guilty of the charge, leading to an acquittal.
Finally, the appeal court holds the power to vary the sentence. This can involve either increasing or lowering the sentence or removing or adding penalties (like a fine or probation).
The timing of when the appeal will be heard varies with each case. For an appeal to be heard, the appeal court must have access to the transcripts of the trial and a record of what occurred during the trial, including the appeal book. Both the appellant and the respondent are required to file written arguments based on the evidence and the law. There may also be a need for further police investigation if new evidence comes into play, although such cases are rare. The appeal hearings are open to anyone who wishes to attend.
Whether an offender attends the hearing of an appeal depends on the type of appeal. In the case of a solicitor appeal, where the appeal is lodged by a legal professional on behalf of the offender, the offender, if in custody, does not usually attend the appeal. In contrast, during inmate appeals, which are appeals lodged by the offender themselves, the offender typically attends and presents his or her appeal.
An offender's jail sentence continues even if they lodge an appeal against their conviction and/or sentence. However, the offender can request to be released from custody until the appeal is heard. If released on bail, the offender must adhere to certain court-imposed conditions. These conditions may include, for example, having no contact with the victim.
The offender might need to return to jail the day before the appeal hearing. A separate hearing is conducted when an offender applies to be released prior to the appeal. If the offender is released and the case involves serious personal injury or trauma, notification is provided either through the office of the Crown Attorney who prosecuted the case, the police force, or both.
The appeal court's role isn't to conduct a retrial of the case. Witnesses are generally not called in an appeal hearing and you aren't required to testify again. However, in some exceptional cases where new evidence is significant, the appeal court may consider this new evidence.
