Procedural & Post-Conviction
Criminal Appeal Lawyer in Canada
A criminal appeal asks an appellate court to review a conviction, acquittal, sentence or other appealable decision for legal error, an unreasonable verdict or a miscarriage of justice. This guide explains the Canadian criminal appeal process, common grounds of appeal, the powers of an appellate court and how appeal counsel can help. Below you can find a criminal appeal lawyer in your province.
Criminal Code, Part XXI, ss. 673 to 696, and Part XXVII for summary conviction appeals·Criminal procedure
What Criminal Appeals involve in Canadian criminal procedure
A criminal appeal asks a higher court to set aside a conviction, an acquittal or a sentence. Indictable appeals go to the provincial court of appeal under Part XXI. Summary conviction appeals go first to the superior court of the province under Part XXVII, with a further appeal to the court of appeal only on a question of law and with leave.
Appeals are not retrials. Section 686 sets out the grounds on which a conviction appeal can succeed: that the verdict is unreasonable or cannot be supported by the evidence, that there was a wrong decision on a question of law, or that there was a miscarriage of justice. Even where a legal error is shown, the curative proviso in section 686(1)(b)(iii) allows the court to dismiss the appeal if no substantial wrong occurred.
Deadlines are strict and short. Notices of appeal are generally due within thirty days, and the appeal record depends on ordering transcripts promptly. Where the deadline has passed, an extension of time must be sought and requires a continuing intention to appeal, a reasonable explanation for the delay and arguable merit.
The legal test
- A right of appeal, or leave to appeal where the appeal is on sentence or is a further appeal
- A notice of appeal filed within the applicable time limit, or an extension of time
- Transcripts of the trial proceedings and a properly constituted appeal book
- An identifiable error: an unreasonable verdict, an error of law, or a miscarriage of justice
- For sentence appeals, that the sentence was demonstrably unfit or resulted from an error in principle
Possible outcomes
- Dismissal of the appeal, leaving the conviction and sentence intact
- A new trial ordered under section 686(2), which restarts the proceeding
- An acquittal entered where the verdict is found unreasonable
- Variation of the sentence, upward or downward
- Continued custody unless release pending appeal is granted under section 679
How counsel can help
- Errors in the jury charge or in the trial judge's self-instruction
- Improper admission or exclusion of evidence, including expert and hearsay rulings
- An unreasonable verdict under section 686(1)(a)(i)
- Ineffective assistance of trial counsel, which requires a specific evidentiary record
- Fresh evidence admitted under the Palmer test
- Errors in principle on sentence, including failure to consider Gladue factors or misapplication of a range
Criminal appeal lawyer: frequently asked questions
- How long do I have to appeal?
- The time limits are short, commonly thirty days from sentence, and they vary between indictable and summary conviction appeals and between provinces. Missing the deadline is not always fatal because an extension of time can be sought, but the application requires an explanation for the delay and arguable merit, so counsel should be retained immediately.
- Can I stay out of custody while my appeal is heard?
- Section 679 allows release pending appeal. The court must be satisfied that the appeal is not frivolous, that the appellant will surrender into custody as required, and that detention is not necessary in the public interest. That last requirement balances enforceability of judgments against reviewability.
- Can I introduce new evidence on appeal?
- Only exceptionally. Fresh evidence must generally satisfy the Palmer test: it could not have been obtained with due diligence for trial, it is relevant and credible, and it could reasonably be expected to have affected the result. Appeals are otherwise decided on the trial record.
Find a criminal appeal lawyer
Criminal defence firms listed on Criminal Lawyers Canada that identify Criminal Appeals among their practice areas. Featured listings appear first.
Criminal Appeals lawyers by province