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Your right to appeal
If you have been found guilty after trial of a criminal offence, you have the right to appeal the conviction and sentence. This means that you have an opportunity to take your case to a higher level court to try and have the conviction overturned and/or the sentence reduced.
Why appeal?
A criminal conviction can have severe and lasting consequences in addition to any punishments imposed as part of the sentence. These include negative impacts on current and future employment as well as travel to the United States. You may also feel that you were unjustly convicted, that the trial was unfair or that the sentence was unduly harsh.
What are my options?
You can choose to appeal either the conviction or sentence or both. A conviction appeal and a sentence appeal are two distinct procedures governed by different legal principles, each of which is aimed at very different results. An appeal against conviction challenges the finding of guilt, whereas an appeal against sentence deals only with the punishment imposed. As a practical matter however, appeals against conviction and sentence (if both are pursued) proceed together, as if they were a single appeal.
Generally speaking, when a decision is made to pursue a conviction appeal, there is very little downside to appealing the sentence as well. On the other hand, a person may wish to appeal only the sentence if there is a very marginal basis upon which to appeal the conviction (for example when there was a guilty plea at trial). Cost and a desire for closure may also play a role in decision-making, since a conviction appeal entails more time and expense than a sentence appeal alone.
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What are the possible outcomes of a conviction appeal?
In a nutshell, the question before an appeal court is whether the verdict can be considered reliable and the trial process fair. There are any number of ways to challenge these two propositions on appeal and, depending upon which argument is successful, there are different remedies that the appeal court may order.
(i) Quash the conviction and substitute an acquittal
This is the best case scenario. It means that the person has been cleared of the charges and the case is over. |
(ii) Quash the conviction and order a new trial
This is the order more commonly made when a conviction appeal is successful. The good news is that the finding of guilt has been set aside. The bad news is that the Crown is entitled to prosecute the case again. In reality however, depending upon the severity of the charge(s), the Crown may choose not to pursue the case any further.
What are my chances of success on a conviction appeal?
The short answer is, somewhere between 35 and 40 percent. That statistic was reported in the Court of Appeal for Ontario's Annual Report, 2009. (The Court of Appeal, located in Toronto, hears appeals from the more serious offences (called indictable), while appeals from less serious offences (called summary conviction) proceed in the Superior Courts of Justice across the province.)
The longer and more meaningful answer is also more frustrating: it depends. If you asked a mechanic what it would take to fix a problem you were having with your car, he would inevitably tell you that a detailed examination of the vehicle was required before he could give you an answer. In the context of a criminal appeal, the inspection and estimate that would be done on your car is referred to as a Legal Opinion on the Merits of Appeal.
What are the possible outcomes of a sentence appeal?
Basically, in a sentence appeal the court is being asked to find that the punishment imposed by the trial judge was excessive in the circumstances. If the appeal court agrees, it may substitute whatever sentence it deems fair. This may mean a shorter period in custody, the conversion of a jail term into "house arrest" (known as a "conditional sentence") in certain circumstances, and/or the removal or alteration of other orders (such as restitution or a driving prohibition).
Beware of the Deadline to Appeal
If you are considering an appeal against your conviction and/or sentence, bear in mind that the deadline for doing so is within 30 DAYS from the date you were sentenced. You should consult a lawyer as soon as possible after being convicted - particularly if you are likely to be sentenced to custody - because you may wish to bring an Application for Bail pending the determination of your appeal. Read on to learn more about Bail Pending Appeal and the appeal process.
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