About Criminal Appeals

You can appeal your criminal conviction. This means taking the case to a higher court which will review everything that happened at trial to see if it was done properly and fairly.  

Yes. In certain circumstances the appeal court may put the sentence on hold until the appeal is heard and determined. If granted bail, you will be released from custody and required to abide by certain conditions which are similar to, but probably stricter than, the conditions upon which you were released on bail pending trial. Click here to watch a slideshow and learn more. 

A Notice of Appeal must be served on the Crown and filed with the appeal court within thirty days from the date that sentence was imposed.  

It is important to keep in mind that an appeal is not a second chance to defend against the Crown’s allegations. The landscape on appeal is quite different from at trial. The presumption of innocence has been replaced by a finding of guilt. The allegations were accepted and are now considered established facts. If a witness was believed by the judge or jury, the time to expose them as a liar has passed.

An appeal proceeds on the presumption that the trial was conducted properly. It is for the appellant – the party bringing the appeal – to show otherwise. This requires establishing ‘legal errors’ that were serious enough to have affected the verdict or otherwise cause a miscarriage of justice. Such errors can involve:

• applying the wrong legal principle
• incorrectly applying the right legal principle
• a denial of procedural safeguards
• an ‘unreasonable verdict,’ in which the evidence could not legally support a conviction
• improper jury instructions

A successful appeal can result in the conviction being overturned, plus one of the following:

• a new trial;
• a substituted acquittal;
• a stay of proceedings; or
• a substituted conviction for a lesser offence.

If the appeal is allowed and a new trial ordered, this is when you get a second chance to defend against the Crown’s allegations. You are once again presumed innocent and have the right to reasonable bail (except for certain offences such as murder), unless the Crown can show good reason why bail should be denied. 

In the other three scenarios there is no re-trial. The case is over and you cannot be made to face the same charge(s) again. With a substituted conviction for a lesser offence (for example, from aggravated assault to simple assault), you will get a new sentence to reflect the less serious charge. With a stay of proceedings or a substituted acquittal, the conviction(s) and accompanying sentence are completely set aside. You are free to go.

Where the appeal court upholds the conviction, you can ask that it reduce the punishment. This requires demonstrating that the lower court imposed a sentence that was too harsh in the circumstances. 

In a successful sentence appeal, the court can reduce the length of custody or, for sentences under two years, allow the sentence to be served in “house arrest.” For less serious offences, you may be permitted to serve a custodial sentence intermittently which could involve, for example, going to jail on weekends so that you can work or attend school during the week. The appeal court can also reduce the sentence to “time served” or convert it to probation where you are released on conditions including the supervision of a probation officer. It can also reduce other ‘ancillary orders’ such as fines and driving prohibitions. 

Yes. You can choose not to challenge the conviction but only the punishment. A sentence appeal is a much faster, simpler and therefore far less expensive process than a conviction appeal. Sentence appeals can be heard in a few months, whereas conviction appeals can take a year and often times much longer. Thus, reduced costs and finality are the advantages of appealing only the sentence. 

Appealing the sentence may be a good option if you voluntarily entered a guilty plea at trial but the punishment imposed by the court was too harsh. On the other hand, if you pleaded guilty without understanding the rights you were giving up, you may wish to appeal the conviction as well.