Appeals and Reviews

hammerAre you looking for a criminal lawyer to appeal a case?

An Appeal is something people do when they lose a case. In order to have a right to appeal, there must be a law that says you have a right to appeal. In criminal cases, because of the seriousness of a criminal conviction (and potentially jail time) everyone has a right to one appeal. In provincial offences (such as traffic tickets) generally you also have the right to appeal if you are unhappy with the outcome of the case.

An Appeal is not a new trial. It is not a higher court re hearing the case again. Instead, a judge of the higher Court will review the case which took place at the lower court to see if the rules were followed. Sometimes the rules weren’t followed and someone who is found guilty is found not guilty in the Appeal Court. Other times, when rules were broken, the Appeal Court will order that the person get a new trial in the lower court with a different judge.

Some examples of reasons why an Appeal could be granted:

  • The trial judge gave insufficient reasons for how He/She came to the conclusion that you were guilty. This will usually result in a new trial.
  • The trial judge was more than wrong; he or she was unreasonable in the conclusion (i.e. no Judge in their right mind could have come to that conclusion having followed the law).
  • The trial judge misapplied an important rule of law such as the burden of proof, the presumption of evidence, how to deal with he-said-she-said cases.
  • The trial judge made a mistake on a Charter claim such as a claim that the charge should have been stopped because it took too long to come to trial (11(b)), or that evidence obtained should have been thrown out because rights were violated.
  • The person didn’t get a fair trial either because of the conduct of the judge, or their own lawyer, or in certain cases the prosecutor.
  • The judge did not tell the jury how to do their job properly in serious criminal cases.
  • In minor traffic tickets, appeals can be granted on a wider variety of grounds as well.

Appeals cannot be granted:

  • Where the judge makes a very minor mistake which cannot be said to have affected the fairness of the trial or which wouldn’t have affected the outcome.
  • Where reasonable people may disagree (i.e. many people could look at a case and some might think an alleged victim was lying while others would think they were telling the truth — Appeals on these kinds of issues can usually only succeed where no reasonable person could have come to the conclusion that the judge did.
  • Most mid trial rulings (i.e. Objection! Hearsay! No it’s not! That’s it judge, Im going to the Appeal Court)
  • Where there is no right of appeal granted by statute.
  • On guilty pleas unless certain criteria are successfully advanced (i.e. the plea was not voluntary, there was a miscarriage of justice etc.)

Where do you appeal?

  • Most people charged with minor to moderate criminal charges will be charged “summarily” which is the equivalent to the American concept of ‘misdemeanor’. In those cases if you are found guilty, you have the right to appeal within 30 days to the Superior Court of Justice. It will generally be in the same city/county as your trial/plea. There are many rules to follow to properly prepare the Appeal and if they aren’t followed the Appeal can be terminated.
  • People charged with more serious criminal charges are charged “by indictment” (which is the equivalent to the American concept of ‘felony’). Indictable charges can proceed by way of a Judge and Jury, by way of a Superior Court judge alone or by way of a provincial Court Judge (Ontario Court of Justice or Court of Quebec / Cour du Québec). In many cases the accused person can choose; in some cases they cannot. Appeals of these cases go to the Court of Appeal. In Ontario, the Court of Appeal is located in Toronto for virtually all Appeals. In Quebec, the Court of Appeal sits in both Montreal and Quebec City. There are many strict rules to follow to properly prepare the Appeal and if they aren’t followed the Appeal can be terminated.
  • If you’ve been charged with a minor traffic ticket or most other traffic offences or most other provincial offences, your case will have first been heard in the Ontario Court of Justice before a Justice of the Peace. An Appeal of that decision is also to the Ontario Court of Justice presided over by a real judge. In some rare cases if the first court was before a real judge then the Appeal would be to the Superior Court.

Appealing the Appeal

As mentioned earlier, in order to be allowed to Appeal, you need to have this right given to you by some law. For criminal cases, and quasi criminal cases this right almost always exists. Once you’ve had an appeal though, if you lose again, it is unusual to be given a right to appeal again.

In order to appeal again, you will typically need to get permission from a judge of the Appeal Court. That permission hearing is like a “pre appeal”. It is a mini hearing to determine whether or not certain criteria are met. The format and timing of this hearing depends on several factors. Also, the criteria depend on the specific law being Appealed under. Often times there needs to be a “novel” legal issue. A novel legal issue is one that hasn’t really been decided before, or, if it has, this new case brings a new dimension to the issue. Or, in some cases the Appeal decision is wrong — in fact so obviously wrong that there appears to be a high chance of success. Typically there is discretion given and other factors may come into play, but it typically isn’t enough to think you are right.

If your first Appeal was the Superior Court of Justice (or in most traffic tickets, the Ontario Court of Justice) then your 2nd Appeal goes to the Ontario Court of Appeal. If your first Appeal was the Ontario Court of Appeal, your next stop would be the Supreme Court of Canada. They have the strictest rules there that need to be followed, and they only hear cases that are really important. Worse, they do not need to justify themselves as to why they reject a case — they’re the Supreme Court! You can’t appeal them! However one common reason where the Supreme Court is required to hear an Appeal is that the Court of Appeal that heard the case on an earlier Appeal, had at least one judge who dissented (disagreed with the the other judges).

Other Types of Reviews

There are other kinds of reviews that aren’t strictly speaking Appeals but are like appeals. For example:

  • Varying a probation order or conditional sentence order;
  • A bail variation (provincial court) or a bail review (Superior Court);
  • An Application for remedies such as “certiorari”. (Certo-what?!) It’s a Latin word which is one of a few types of applications that can be brought during a trial/proceeding, or shortly after where there is no right of Appeal. This is often because the lower court judge is alleged to have exceeded his jurisdiction. So, if a judge were to say “I don’t like that argument, I am ordering you to wash my car” that would be a good example. When an error is a jurisdiction-based one, and when it’s one that is properly Appealed is a very technical area of the law.