09 Apr
09 April 2018 Adam Rodgers

Can I appeal my criminal conviction? What should I know?

The first thing to be aware of in considering an appeal of your conviction is time. The Notice of Appeal (which starts the appeal process) must be filed within 30 days of your sentence. It is best to speak with a lawyer well before day 30, to allow enough time for the lawyer to give your case a thorough review and plan out the Notice of Appeal.

An appeal is not something to be lightly undertaken. Just ordering transcripts of a trial and making enough copies for the Court and the Crown can cost thousands of dollars. Of course, legal fees will also be significant, though that will depend on the complexity of your case.

In order for an appeal to be successful, you need to show that there was a miscarriage of justice at trial. Usually, that requires you to be able to show that the trial judge made an error interpreting the applicable law. Judges at trial need to explain why they made their decision, including what legal foundation they adopted, which witnesses they believed (and why they believed them), and generally how they were able to logically reach their conclusion of guilt (beyond a reasonable doubt).

Often, convicted persons simply feel that it was unfair that their side of the story was not believed by the judge (or jury). Such situations are difficult to appeal, as Court of Appeal Justices are reluctant to overturn findings of fact and credibility made by the Trial Judge, who of course was able to see the witnesses firsthand.

Even with that high bar, such appeals are possible if the verdict was one that could not be reconciled to the evidence. It is even possible (though very rare) to successfully appeal a jury verdict.

Procedurally, a person who has been convicted and sentenced first needs to file their Notice of Appeal, which is a short document identifying why they think their trial verdict was given in error (the “grounds” of appeal). Next, the appellant makes an appearance before a Court of Appeal Justice to set deadlines for filing documents and or scheduling the appeal hearing.

For those sentenced to jail after being convicted, or other forms of custody such as house arrest, you can apply (after filing your notice of appeal) to be released pending the hearing of your appeal. For this, you will need a good plan for release (usually a more robust plan than you may have had prior to your trial) involving a surety (someone to vouch for you) and some assets at risk if you were to breach your conditions.

Next, the written version of your argument (called a factum) is filed by both the Appellant and the Respondent (usually the Crown). This is a crucial element of the appeal, and is done well in advance of the hearing so that the Justices know what argument you are making, so they can prepare for the hearing.

At the hearing itself before the Court of Appeal, there are three Justices present who form the appeal “panel”. The panel hears the arguments from both sides, and will typically have questions for the lawyers during the hearing. The panel is allowed to either give their decision the day the appeal is heard, or (more commonly) reserve decision and release it in writing at some future date.

If you are successful in your appeal, the Court of Appeal will either direct an acquittal (if that is clearly the just result), or order a new trial, depending on the nature of your success at appeal.

At Boudrot Rodgers, we have experience successfully appealing criminal convictions to the Nova Scotia Court of Appeal. Anyone who feels they have been unjustly convicted, and wants to evaluate their chances of successfully appealing that conviction, should contact us to find out more about what is involved.