Criminal Appeal Lawyers In Edmonton & Alberta
Our criminal lawyers regularly take on worthy criminal appeals in Edmonton and the surrounding area. Our firm has experience at summary conviction appeal court in the Court of Queen’s Bench, at the Court of Appeal, and at the Supreme Court of Canada.
In general, anyone convicted of a criminal offence has the right to appeal their conviction at least once. Depending on what happens at that first appeal, that individual may have a further right of appeal as well. If there is no automatic right to a second appeal, that person may be allowed to apply for permission from the Court to further appeal their conviction (this is known as seeking “leave to appeal”).
If you have been wrongly convicted of an offence, or would like to appeal the sentence you have received, we can help. Contact our criminal lawyers today.
What is a criminal appeal?
An appeal is a process by which a person asks a higher court to review their case to see if any mistakes were made, in the hopes of convincing a higher court to change the decision or order a new trial.
The party bringing the appeal (called the “Appellant”) will try to persuade the appeal court that there was an error made by the lower court that justifies setting aside the lower court’s decision. The other party (called the “Respondent”) will argue that the lower court’s decision was correct and should not be interfered with. The appeal court will consider all of these arguments and then decide whether to uphold the lower court’s decision or to intervene.
Criminal appeals can be in relation to convictions (being found guilty of a criminal offence) and/or sentences (the punishment that was given for the conviction). The Crown can also appeal against an acquittal (a finding of not guilty) or sentence.
Types Of Appeals
There are two main types of criminal appeals:
- Conviction appeals
- Sentence appeals
What is a conviction appeal?
A conviction appeal involves reconsidering the finding of a judge or jury of either guilty (in the case of an appeal by the Accused) or not guilty (in the case of an appeal by the Crown).
The party appealing in a conviction appeal is asking the appeal court to review the lower court’s decision to determine if any mistakes were made:
- If the higher court agrees with your conviction appeal, it can either acquit you (free you from a criminal charge) or order a new trial.
- If the higher court disagrees with your conviction appeal, you will remain convicted of the offence but may be able to appeal further to an even higher level of court.
For less serious offences, called summary conviction offences, appeals are initially made to the Alberta Court of Queen’s Bench. If the first appeal is unsuccessful, summary convictions can be appealed further to the Alberta Court of Appeal and then to the Supreme Court of Canada — but permission of the Court is required in both of these cases.
Conviction appeals related to more serious offences, called indictable offences, proceed immediately to the Alberta Court of Appeal. If the first appeal is unsuccessful, a further appeal to the Supreme Court of Canada is also possible, but permission of the Court is required in this case.
What is a sentence appeal?
A sentence appeal involves reconsidering a finding by a judge or jury to a higher court after an Accused either plead guilty to an offence or is found guilty of the offence by a judge or jury after a trial.
- If the higher court agrees with your appeal, it may order a different sentence.
- If the higher court disagrees with your appeal, the original sentence remains in place, though further appeals to even higher levels of court may be possible.
Sentence appeals for summary conviction offences are initially made to the Alberta Court of Queen’s Bench. As with summary conviction appeals, if the initial sentence appeal is unsuccessful, further sentence appeals to higher courts require that the Court’s permission be obtained first.
Sentence appeals for indictable offences proceed immediately to the Alberta Court of Appeal, but unlike for conviction appeals, permission of the Court for a sentence appeal is required first. If the initial sentence appeal is unsuccessful, further appeal to the Supreme Court of Canada is also possible (with permission) — though the Supreme Court rarely grants permission to hear sentence appeals.
What types of crimes or charges do I have the right to appeal?
There are no limitations on the types of crimes that can be appealed, though the type of offence will determine which court will hear the appeal and whether permission of the court to appeal is required. For example, whether or not you’re involved in a summary conviction offence or indictable offence.
Deadline To Appeal For A Conviction
For most criminal matters, you have 30 days from when the lower court made its decision to file a Notice of Appeal and serve it on the Crown’s office. However, as deadlines can vary, it is important to obtain legal advice about when your appeal must be filed.
What happens if I miss my deadline to appeal?
If you miss the deadline, you may still be able to file your appeal if you first receive the appeal Court’s permission to do so.
This involves making an application to the appeal court. The appeal judge considering the application will look at a number of factors in deciding whether to allow you to file your appeal late, including:
- How much time has passed since the deadline
- Whether you have a good reason for having missed the deadline
- Whether you have a good chance of success if the appeal does proceed
- Whether the delay has caused any unfairness to the prosecution.
Important note: You should make every effort to file your Notice of Appeal within the applicable deadline, but if you miss it, you’ll need to move as quickly as possible. The longer you wait, the less likely it is that you will be granted permission to file your appeal.
If you need help filing your Notice Of Appeal, contact our criminal lawyers today.
How Criminal Appeals Are Decided In Court
Appeals are usually decided “on the record,” meaning there is typically no new evidence introduced at an appeal hearing (though there are some exceptions to this rule).
The appeal court will read portions of the transcripts of the evidence that was introduced in the lower court, but witnesses will not be called or questioned by lawyers. Both the Accused’s lawyer and the Crown will make arguments to the Court of Appeal about the applicable law, both in writing and (usually) orally at a hearing as well.
How To Win An Appeal In Court
Appeal courts will typically show respect to a lower court’s decision and will not interfere with it simply because the appeal court might have reached a different conclusion. For this reason, it is not enough to simply argue that the trial court was “wrong”.
The limited reasons why appeal courts might set aside a lower court’s decision include:
- Unreasonable verdict: You may be able to win your appeal by convincing the appeal court that the lower court’s decision was unreasonable, given the evidence that was presented at the trial. For example, you may be able to persuade the appeal court that there was not enough evidence, or the evidence was too weak, for a reasonable jury or trial judge to have found you guilty.
- Error of law: Appeals can also be won if the lower court made a legal error, such as by allowing evidence to be admitted at the trial that should not have been, misstating the applicable legal principles, giving the jury an incorrect instruction on an important legal issue, or wrongfully interpreting a Charter right.
- Misunderstanding of the evidence: You may be able to win your appeal if you can show the appeal court that the trial judge made a mistake about the evidence that was presented at the trial.
- Insufficient reasons: Since trial courts have a duty to explain their decisions to the parties, if the reasons given are not detailed enough to allow the appeal court to properly review them, an appeal court may order a new trial on that basis.
Why are criminal appeals so difficult to win?
Appeals can be difficult to win because they are usually decided only on transcripts of the evidence that was introduced at the initial trial or sentencing proceeding. With a few limited exceptions, it is not possible to introduce new evidence at the appeal hearing. Since the trial judge had the benefit of hearing the evidence firsthand, the appellate court will usually defer to the findings of fact made by the trial judge unless they were clearly unreasonable.
Appeals are also not an opportunity to do the trial or sentencing proceeding over, and an appellate court will not overturn a trial judge’s decision simply because a different judge might have reached a different decision.
A successful sentence appeal requires the offender to show that the sentence was either clearly outside of an appropriate range of sentence for a particular set of circumstances, or that the sentencing judge made a legal error in deciding how to impose the sentence.
If you need help appealing a conviction, contact our criminal lawyers today for expert legal advice.
How do criminal appeals differ from criminal trials (or sentence hearings)?
A criminal appeal comes after the judge or jury has already made its decision. It is not a do-over of the original trial or sentencing proceeding, but rather involves a review of the original decision to determine if any errors were made. Unlike trials or sentencing proceedings, appeals usually do not involve the presentation of evidence.
During a criminal trial, the parties present their respective evidence to the court. The evidence is then considered either by a judge sitting alone or by a judge and jury. In jury cases, the judge will oversee the presentation of the evidence and explain the applicable law to the jury. At the end of the trial, the judge (in the case of a judge-alone trial) or the jury (in the case of a jury trial) will make a decision as to whether the accused person is guilty or not guilty of the offence.
Criminal sentencing hearings occur after an offender has either been found guilty of an offence at trial or entered a guilty plea. In sentencing hearings, evidence about the offence and the offender’s circumstances is typically presented to the judge, who will then make a decision as to what the appropriate punishment should be.
Looking For A Lawyer To Help You With A Criminal Appeal In Edmonton?
Our criminal lawyers can help you:
- Review your case to determine what arguments you might be able to raise on appeal.
- Prepare written arguments for the appeal hearing. Written arguments are then submitted to the appeal court on your behalf, and are an important part of helping the appeal judges to understand the issues in the case and attempting to persuade them why you should win your appeal.
- Appear on your behalf at an oral hearing to make arguments before the court.
- Assist you with the process of seeking bail while you are waiting for your appeal to be heard.
Criminal appeals have strict timelines, so it is important not to wait. Please call us today.