Home      Clients FAQ

Frequently Asked Questions

 
 
Please call or e-mail for further information
or a free initial consultation on any criminal appeal matter.

416.357.5575
yuen@criminallawappeals.ca

 What is an appeal?
 
An appeal is not a second chance to challenge the Crown’s case against you. In other words, it is not a re-trial. Rather, it is a review by a higher court to determine whether the trial was conducted fairly and properly. Think of it as watching a replay of a hockey game, with rewind and slow motion playback, to see if the referee made any bad calls that cost your team the game. If so, you might feel that your team didn’t lose “fair and square” and that a re-match should be held, right?
 
While the NHL rules do not provide for re-matches, the Criminal Code of Canada does, in certain circumstances. If the appeal court, upon reviewing what took place at the trial, determines that the judge applied the law incorrectly, interpreted the evidence unreasonably, or that the trial was otherwise unfair, the court may set aside the results and order a “re-match” - that is, a new trial. In some cases, the appeal court may enter an acquittal or stay the proceedings instead of allowing a new trial. Game over. You win.
 
 Can I appeal my sentence?
 
Yes. You can choose to appeal the sentence or both conviction and sentence. By appealing both you are setting up a contingency plan: your first goal is to overturn the conviction, but if that fails, you may be able to have your sentence reduced. As a practical matter, appeals against conviction(s) and appeals against sentence proceed at the same time, as if they were a single appeal.
 
An appeal against sentence (also referred to as a sentence appeal) if successful, may result in less jail time, the ability to serve the sentence under “house arrest” instead of jail, or the variation or removal of other orders, such as driving prohibitions and D.N.A. orders.
 
 I was not sentenced to jail - should I bother to appeal?
 
If you have been found guilty of a criminal offence, you have a criminal record. Convictions for criminal charges are kept in police databases and will limit your options in life. It is not the same as a driving record if, for example, you have ever had a speeding ticket and paid a fine. A criminal record will prevent you from getting certain types of jobs. You will encounter difficulty travelling to the United States and perhaps other countries as well.
 
Even if these considerations don’t mean much to you today, a criminal record is for life and most of us cannot predict what the future holds. Don’t find yourself being denied opportunities because of a criminal conviction that you could have, but didn't, challenge when you had the chance.
 
 What is the deadline to appeal my case?
 
The appeal must be launched (formally advising the court that you intend to appeal by submitting a Notice of Appeal) within 30 DAYS from the day that sentence was imposed.
 
If you have been convicted but not yet sentenced, do not wait until after sentencing to consider whether to appeal or to speak with a lawyer about your options. Some steps will take time and are beyond your (or your lawyer’s) control. For example, if you want a legal opinion about how strong your case is on appeal (whether it has merit), you will need to obtain a transcript (an official word for word reproduction) of the court’s Reasons for Judgment or, if it was a jury trial, the Charge to the Jury. This can take several weeks.
 
Another time-sensitive factor to consider is that, depending on the sentence you end up getting, you may wish to apply for bail while waiting for the appeal to be heard. A bail application can take a number of weeks to prepare, so it's best to start the process as soon as possible if you want to minimize the time spent in jail. Read more about bail pending appeal here.
 
 What if I have missed the deadline for launching an appeal?
 
The appeal court can grant special permission to allow an appeal to be launched even though the 30-day deadline has passed. In order to grant an extension of time, the court must be satisfied that you had the intention to appeal within the permitted time frame but, through no fault of your own, you were unable to file the necessary paperwork (the Notice of Appeal) on time. The delay must be reasonably accounted for and cannot be excessive.
 
I want to appeal; what should I do?
 
Speak to a criminal lawyer who is experienced in conducting appeals without delay so you can preserve your right to appeal before the deadline passes. Although extensions of time may be granted in certain circumstances there is no guarantee that you will get one, and you must bring a formal Application in the appeal court. This entails additional time and expense.
 
 Can I conduct my own appeal, without a lawyer?
 
Yes, you may choose not to retain a lawyer and to represent yourself in court. For more  information read the self-help packages at the Ontario Court of Appeal website.
 
Bear in mind, however, that appeals presented by a lawyer are almost twice as likely to succeed than cases in which the appellant is self-represented. (See page 30 of the Court of Appeal for Ontario's 2013 Annual Report.) 
 
 
 What kind of criminal lawyer handles appeals?
 
An appellate counsel, or appeal lawyer. While there is no requirement for lawyers to designate or limit themselves strictly to trial practice on the one hand or appellate practice on the other, there is a big difference between the two. For this reason, most trial lawyers do not handle appeals.
 
 Why do I need a lawyer with experience in appeals?
 
Would you hire the carpenter who framed your house to carve a miniature wooden replica of a castle for your daughter’s birthday? While both are craftsmen in wood, the two jobs involve different tools, skills, knowledge and experience.
 
In the same way, while a criminal trial and a criminal appeal are both proceedings in criminal law (as opposed to some other area of law, like real estate), they are very different in nature. A trial is mainly concerned with establishing what happened through the testimony of witnesses and other evidence. On appeal you do not get to re-argue the facts, but only how the law applies to the evidence that was presented at trial.
 
Generally speaking, you have only one chance to appeal  your conviction and/or sentence. As with other challenges in life, success cannot be guaranteed and is dependent upon many variables, some of which are beyond your control. The one factor that you can control is the person you choose to fight for you. 
 
 What should I look for in an appeal lawyer?
 
A criminal lawyer who practices exclusively or primarily at the appellate level, or who has an abundance of appellate experience.
 
Because of the differences between trial and appellate advocacy, you need someone with extensive appellate experience on your side. This is particularly true for cases that are argued in the Court of Appeal, which is the highest court in the province, and the last stop before the Supreme Court of Canada, the highest court in the country. Because few cases reach this level of court, only a very small percentage of lawyers have the opportunity to appear in the Court of Appeal. You can be sure however, that the Crown arguing against your case is one of them. This is because the Crown has a very large contingent of criminal lawyers dedicated almost exclusively to appellate practice. You will be at a distinct disadvantage if you do not have the same level of expertise on your side.
 
 How do I evaluate a lawyer I am thinking of hiring?
 
One of the easiest ways to verify a lawyer’s experience is to see if any of their cases have been published in a criminal cases reporting service. These publications are research tools for the legal profession. Because “the law” is not only what is written in a piece of legislation, but also legal principles developed by judges in previous cases (both of which are subject to interpretation and refinement in later cases), court decisions that have significance for the understanding and further development of the law are published by reporting services. Such decisions are referred to as reported cases.
 
In the past, reported cases were not widely accessible. With the internet, however, there are now various websites from which anyone can freely access court decisions which can be searched by key words including offence type, legal issue or the names of lawyers. Most courts across the country have their own websites with a database of decisions released by that court. The Canadian Legal Information Institute  (CanLII) maintains a comprehensive database of noteworthy decisions as well as useful links to all levels of courts and legislation for every jurisdiction in the country.