Section 4 - After the Trial

Lesson 2: Appeals

If you have ever listened to media coverage of criminal cases you will be aware that often at the end of a trial the reporters will ask the lawyers on the losing side if they intend to launch an appeal. There are many reasons why either the Crown or the defence might decide to ask for an appeal after a trial has ended, but ultimately the reasons all boil down to the same things: either the accused believes that the conviction was unjust and/or the sentence too harsh, or the Crown believes that an acquittal was wrong or the sentence too lenient.

The right of appeal was introduced into the Canadian criminal justice system in 1923. Its purpose is to allow one or more judges to review the decisions of a trial judge (or a judge and jury) in a lower court. Either the Crown or the defence can launch an appeal, and they have 30 days to begin this process.

In the case of an indictable offence, the defence or the Crown can appeal either the sentence or the conviction.

The party applying for the appeal is known as the appellant, and the other party is called the respondent. In most appeals - but by no means all - the appellant is the defence and the respondent is the Crown.

During the appeal process, a panel of judges in a higher court will look at the transcripts of the trial to see if an error was made - either by allowing inadmissible evidence or simply in not having enough evidence for a conviction. The lawyers for the appellant and respondent submit written arguments to the judges setting out their cases. Both sides may also present oral arguments before the court; this process allows the appellate court to pose questions.

Normally, neither side is permitted to present new evidence during an appeal process; though "fresh evidence" can be admitted in some situations. Rather than focusing on evidence, both sides focus on whether or not an error was made during the trial. This might be an "error in fact" (such as admitting evidence that should not have been allowed) or an "error in law" (such as a mistake in the trial proceeding).

If an appeal is successful, the result might be that the decision of the trial court is reversed or the appellate court might order a completely new trial - a trial trial de novo. It is important to note, however, that an appeal late court can't reverse an acquittal by a jury; if it disagrees with the decision, its only course of action is to order a new trial. 

In the case of summary conviction offences, appeals can be brought for the same reason as for indictable offences. However a second type of appeal is allowed for summary conviction offences. These appeals concern questions of law or jurisdiction: for example, an accused might appeal a conviction on the grounds that the case was tried in Provincial Court but should have been tried in the Court of Queen's Bench. Appeals of this sort can only be heard in the Alberta Court of Appeal.

Appeals proceed up the ladder of courts that you studied earlier in this course. Ultimately some appeals may go all the way to the Supreme Court of Canada - the highest appellate court in the land. Only appeals concerning serious questions of law end up there.

Normally, the Supreme Court decides whether or not it will hear an appeal from a lower court; it is simply too busy to hear every appeal that comes its way. In some cases, however, it has no choice - for instance, when the panel of judges of a provincial Court of Appeal comes to a split decision.