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Procedure for a Criminal Appeal


The following information outlines the criminal appeal process. It is not intended to give legal advice. Court staff cannot provide legal advice, nor can they conduct or respond to a criminal appeal on your behalf.

For accurate, more detailed information about criminal appeals and procedures, please refer to:

  • Justice Laws Website Criminal Code of Canada (Indictable offences ss.673-689) (sentencing, ss.718-746.1)

 

Can I represent myself or must I hire a lawyer to appear before the Court of Appeal?

You may represent yourself at the Court of Appeal, but it is not recommended. The process of conducting an appeal can be complicated and the issues are usually questions of law. The preferred course is to be represented by a lawyer.

If you represent yourself, before you proceed with an appeal it is a good idea to speak to a lawyer. You can contact the following organizations for assistance:

1) Community Legal Information Association
    P.O. Box 1207, Charlottetown, PE C1A 7M8.
    40 Enman Crescent, Royalty Centre, Room 111
    Charlottetown, PE  902-892-0853
    Toll free: 1-800-240-9798;

2) P.E.I. Legal Aid
    Customs House
    40 Great George Street
    Charlottetown, PE 902-368-6043


Can I request a Court appointed lawyer?


In some cases, you can apply for a court-appointed lawyer under section 684 of the Criminal Code. You can apply to the Court of Appeal if you have:
• filed a Notice of Appeal with the Court of Appeal involving a criminal matter;
• no money to hire a lawyer for your appeal;
• applied for and been refused legal aid through P.E.I. Legal Aid;
• exhausted all your appeal remedies within P.E.I. Legal Aid and the services of a legal aid lawyer are still refused.

You need to file an affidavit to support your application for legal counsel. Your affidavit must describe:
(i) your financial circumstances, including income, expenses, debts and the value of the items you own;
(ii) your education and knowledge of the Court process;
(iii) the complexity of your case and why it requires a lawyer to advance the appeal on your behalf;
(iv) your grounds of appeal and why you believe your appeal should succeed;
(v) that you have exhausted all your rights to obtain legal counsel through P.E.I. Legal Aid. You should attach a letter from P.E.I. Legal Aid confirming that you have been denied legal aid. 
You can apply for assignment of counsel pursuant to Rule 82.18 by filing (Form 82H) together with an affidavit as set out in (Form 82I).
 

What are the reasons for appealing a conviction?

A conviction may be set aside for one of the following three reasons:

1) The verdict is unreasonable or cannot be supported by the evidence. This kind of challenge focuses only on the evidence. It is necessary to persuade the Court that the evidence was too weak to make a finding of guilt beyond a reasonable doubt.
2) An error of law was made. For example, the trial judge misdirected a jury on a question of law, wrongful admission of evidence, or an incorrect interpretation of a Charter right. However, the Court of Appeal would not allow an appeal for error of law if the verdict would be the same without the error.
3) Errors of both fact and law are considered to be a miscarriage of justice. For example, a biased jury member or misapprehended evidence.


What are the reasons for appealing the sentence ordered by the trial judge?

The sentence imposed by the trial judge can be varied for one or more of the following reasons:

1) The sentence is excessive, given the background of the offender and circumstances of the offence. It is advisable to provide the Court with reported judgments or decisions of the Court or other courts to show that the sentence imposed by the trial judge is excessive or long compared to similar offences by similar offenders. The judgments or decisions most useful to your appeal would be those in which the circumstances of the offence and/or the background of the accused is similar.

You can find court decisions (judgments) on sentencing at the Sir Louis Henry Davies Law Courts Library, on the Courts website, Reasons for Judgment  which contains judgements of both the Supreme Court of Prince Edward Island and the Court of Appeal. As well, judgments or decisions of the Court and other courts can be found at the Canadian Legal Information Institute.

2) The sentence is illegal. The Criminal Code of Canada sets out the penalties that can be imposed for every criminal offence. A sentence which is not authorized by the Criminal Code is illegal.

The Court of Appeal will compare the sentence you received with the applicable section of the Criminal Code and consider how your sentence does not comply with the law.


3) An error in application of the principles of sentencing that resulted in an unfit sentence. 

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions that have one or more of the following objectives:

• to denounce unlawful conduct;
• to deter the offender and other persons from committing offences;
• to separate offenders from society, where necessary;
• to assist in rehabilitating offenders;
• to provide reparations for harm done to victims or to the community; and
• to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
 

If it is determined that a judge has ignored or put too little or too much emphasis on one or more of the above principles, the Court will consider varying the sentence. However, the fact that a trial judge has given one or more of those factors different weight than the Court of Appeal would have done, or made an error in applying one of the principles of sentencing, does not guarantee that the Court will change the sentence. The Court of Appeal must be convinced that the sentence is unfit.


Are there any resources about the principles of sentencing?

The following resources may help you understand the principles of sentencing:

  • Martin’s Annual Criminal Code offers examples of errors made by trial judges when applying the principles of sentencing (see the annotations following sections 687, 718, 718.1, and 718.2). It is available from the Law Society library.

  • Sentencing  by Clayton C. Ruby et al. (6th. Ed. 2004) is a useful textbook available in the Courthouse Library.

The decisions of the Supreme Court of Canada  are helpful in understanding the principles of sentencing.You can also find information on sentencng at www.CanLII.org


 

How do I start an appeal?

First file a Notice of Appeal that sets out the grounds of appeal and the relief sought. If you are not represented, the Notice of Appeal shall be contained in the Rules of Civil Procedure (Form 82B). In all other appeals, the Notice of Appeal shall be in (Form 82A).

 

What are the time limits for filing a Notice of Appeal?


A Notice of Appeal shall be filed not later than 30 days after the date of the sentence.

 

How and where do I file a Notice of Appeal?

In the case of a prisoner appeal, the Notice of Appeal is delivered to the senior official of the penal institution in which the appellant is imprisoned. The senior official shall endorse the date of receipt on the document and shall forward the original to the Deputy Registrar of the Court of Appeal. 

In all other cases, the appellant shall file the Notice of Appeal with the Deputy Registrar. (See Rule 82.05(2) to (6).)

 
You must contact the Deputy Registrar of the Court of Appeal to obtain a date for the hearing of your application.

When is leave to appeal required?

Leave or permission to appeal is required where the appellant is appealing from sentence only. The argument respecting leave shall be presented at the hearing of the appeal. 

In the case of an application for Release Pending Determination of Appeal (bail) pursuant to s.679 of the Criminal Code, leave to appeal is required if the appellant is appealing the length of sentence imposed by the trial judge.

 

What happens if the time to appeal has expired?

You may file a Notice of Application pursuant to Rule 82.23 requesting to extend or abridge the time for filing a Notice of Appeal.

An application to extend or abridge the time for filing shall include an affidavit setting out the merits of the appeal, an explanation for failing to apply within the time prescribed by the Rules, or any special circumstances that might cause an injustice to the applicant.  The Court will consider these factors in determining whether to grant the application.


Can I present my appeal in writing?


Yes, Rule 82.08 provides that an appeal can be presented in writing. You are still required to serve and file an appellant's factum according to Rule 82.14(1).


What is a transcript and is it required?

A transcript is a typed record of the trial or sentencing hearing which includes all of the evidence presented at trial. It is prepared by a certified court transcriber.

Rule 82.09 provides that the parties to an appeal shall file with the Court only those portions of the transcript that are necessary for a determination of the issue(s) on an appeal.
 

An appellant is required to file with the Notice of Appeal a copy of the Request for Transcript and Certificate in Form 82C requesting the preparation of the transcript. This requirement does not apply in the following cases:

a) a prisoner appeal; for which the Crown will order the transcript;
b) an appeal from a summary conviction appeal court; or
c) a judge otherwise orders.
 

What is an Appeal Book?

An appeal book contains filed copies of all material relating to the case. 

An appellant is required to prepare an Appeal Book which shall contain, where applicable, in the following order: (See Rule 82.11.)

a) an index;
b) a copy of the Notice of Appeal and Notice of Cross-appeal;
c) a copy of any order respecting the conduct of the appeal;
d) a copy of the information or indictment;
e) a copy of any decision and order of the trial court;
f) a copy of any agreed Statement of Facts;
g) any agreement to limit the contents of the transcript;
h) a list of all exhibits;
i) a copy of each documentary exhibit or electronic information entered into evidence including affidavits and written admissions;
j) any other item that was before the trial court which the appellant deems necessary for the appeal. 

In the case of an appeal against sentence, the appellant shall also file the following:

 

a) a copy of any pre-sentence report and victim impact statement;
b) a copy of any restitution, probation or conditional sentence order;
c) a copy of the offender’s criminal record;
d) any medical or psychiatric reports filed at the time of the sentence; and
e) any exhibits entered at the sentencing and not at trial. 


In a prisoner appeal, the Crown shall prepare the Appeal Book. 


What is a factum and is it required?


An appellant is required to file a factum unless the appellant is self-represented and desires to only present oral argument or the court otherwise orders.

The appellant’s factum shall consist of the following: (See Rule 82.12(2).) 

a) Part 1, a concise summary of the facts relevant to the issues in the appeal, including identification of the trial court and the result, with reference to the evidence by page and line of the transcription;
b) Part II, a concise statement setting out clearly and particularly the points in issue in the appeal;
c) Part III, a concise statement of the argument, law and authorities relied on;
d) Part IV, a statement of the Order that the Court will be asked to make;
e) Schedule A, a list of the authorities or cases relied on; and
f) Schedule B, (i) an index, (ii) the headnote and relevant portions of the text (or the complete text if most of it is relevant to the issues in the appeal) and the authorities relied on, and (iii) all relevant provisions of statutes, regulations and bylaws, with each authority. 

The respondent’s factum shall consist of the following: (See Rule 82.13(2).)
a) Part I, a statement of the facts in the appellant's summary of relevant facts that the respondent accepts as correct as well as those facts with which the respondent disagrees and a concise summary of any additional facts relied on, with such reference to the evidence by page and line of the transcript as is necessary;
b) Part II, the position of the respondent with respect to each issue raised by the appellant, immediately followed by a concise statement of the law and the authorities relating to that issue;
c) Part III, a statement of any additional issues raised by the respondent, the statement of each issue to be immediately followed by a concise statement of the law and the authorities relating to that issue;
d) Part IV, a statement of the order that the court will be asked to make;
e) Schedule A, a list of the authorities or cases relied on; and
f) Schedule B, (i) an index,  (ii) the headnote and the relevant portions of the text (or the complete text if most of the text is relevant to the issues in the appeal) and the authorities relied on, and (iii) all relevant provisions of statutes, regulations and bylaws.


Can new evidence be introduced in an appeal hearing?


An appeal is generally based on the record in the trial. The Court of Appeal will not receive new evidence unless the party wishing to introduce it is successful in obtaining an order from the Court of Appeal allowing for the introduction of fresh evidence. The procedure is set out in Rule 82.17. Additional practice directions are provided in the Court of Appeal Practice Directions (section 6(d), page 14). Generally, the motion is made at the same time as the hearing of the appeal on its merits.

To be successful, the applicant must persuade the Court of Appeal that the evidence:
(i) could not have been called at trial;
(ii) is relevant because it relates to an issue that was a deciding factor;
(iii) is reliable; and
(iv) could reasonably be expected to have affected the outcome (when taken with the other evidence presented at the trial).

It is difficult to satisfy all of these conditions. Therefore, applications to introduce new evidence are rarely successful.


How is an appeal perfected?

An appeal is perfected when all the required documents are filed.  The Deputy Registrar, under the direction of the Chief Justice of the Court of Appeal, sets the appeal for hearing when all the filing requirements (including times and number of copies) are in compliance with the Rules.

In the case of a prisoner appeal, within 30 days after being notified that the evidence is transcribed or if no evidence is being transcribed, within 30 days of the issue of the Notice of Appeal, the Crown shall file four copies of the appeal book, and the appellant shall file five copies of the appellant’s factum.


What happens in a Court of Appeal hearing?

A panel of three judges hears all appeals. Most appeals last only a few hours. An appeal is very different from a trial. There is no jury and there are no witnesses. New evidence is rarely considered by the Court of Appeal and only upon motion and with leave of the Court. 

The judges will be familiar with the appeal before they enter the courtroom. They will have read the transcript of evidence, the appeal book, and both facta.

At the hearing, both parties have an opportunity to make oral argument to the Court. Oral argument, based on the argument outlined in the appellant’s factum, highlights to the Court matters in the factum with which the appellant disagrees. 

To commence the hearing, the Court clerk calls the Court of Appeal to order and calls the case. The appellant addresses the Court first, setting out his or her argument based on the factum. The respondent then does the same. The appellant then has a limited right to reply. The purpose of reply is to address issues raised by the respondent that were not addressed during the appellant's initial submission.

The judges usually ask questions as the oral argument is presented. It is advisable to try to respond to the judge’s questions.


What should I call a Court of Appeal judge?

In court, judges are addressed as "Chief Justice" or "Justice"; collectively, they are referred to as the "Judges of the Court of Appeal" (the Honourable Chief Justice Smith or the Honourable Justice Smith).


What should I wear when I go to court?


The judges, lawyers, and court clerk wear black gowns for appeals and chambers matters.
Members of the public participating in appeal proceedings should be appropriately dressed in a suit or proper business attire.

 

What happens after an appeal?

The Court of Appeal may give its judgment or decision orally on the day the appeal is heard. More often the Court will reserve the decision, taking time to deliberate about the arguments, providing reasons later in a written decision or judgment. Usually the judges agree and produce one unanimous judgment. Occasionally they cannot agree. In this instance, the judgment of the majority is the judgment of the Court. The minority judgment is called a dissenting judgment.

Forty eight (48) hours before the judgment is filed and released, the deputy registrar of the Court of Appeal will contact counsel for the parties or a self-represented litigant directly by telephone and explain the judgment release process. At nine o’clock on the morning of filing the judgment, the parties may pick up their copy of the decision or have it sent to them by mail or email. The decision is then placed on the Court of Appeal website under "judgments."

Once the judgment is given, the parties must prepare an order. Usually the successful party prepares a draft order and obtains the consent of the other party regarding the form of the order. Where one party is self-represented, the Crown usually prepares the order. The order is signed by the Court of Appeal judges and filed with the Court of Appeal registry.


What are the possible results of an appeal?


In most cases, the Court of Appeal can make one of five decisions:

1. Dismiss the appeal from conviction or sentence
If the Court finds that the trial was properly conducted, the evidence supports the conviction, and there was no error of law, it would dismiss the appeal. If the Court finds that an error was made, but was not significant, it may dismiss the appeal even though there was an error. The Court may also dismiss an appeal against a sentence if a court is satisfied that the sentence fits the crime.

2. Order a new trial
If the Court finds that the trial was not fairly or properly conducted, the Court could allow the appeal, set aside the conviction and order a new trial. The Court may also set aside an acquittal and order a new trial where there has been a significant error of law.

3. Enter a verdict of acquittal
The Court may acquit the offender (find the offender not guilty of the charge) if the Court finds that the evidence does not support the conviction.

4. Vary the sentence
The Court may increase or decrease the sentence or remove or add penalties such as a fine or probation.

5. Substitute a verdict of guilty
The Court may overturn an acquittal, find the offender guilty of an offence, and then sentence the offender. The power to substitute a verdict of guilt is only available when the offender has been tried by a judge sitting without a jury. Where a jury has acquitted the accused, the powers of the Court of Appeal are limited to ordering a new trial.

 

May I appeal a Court of Appeal decision?

Yes, a party may seek leave and sometimes obtain permission to appeal from the Supreme Court of Canada in Ottawa.

In some serious criminal cases, where there is a dissenting opinion rendered by a judge of the Court of Appeal or where a Court of Appeal has found someone guilty who had been acquitted(found not guilty) at the original trial, a party may have an automatic right to appeal.

 

More information is available on appealing a decision to the Supreme Court of Canada.

Can I abandon my appeal?

Yes. Rule 82.16 allows an appellant to abandon an appeal before its hearing. Complete and file Form 82(G) to abandon an appeal. 

An appeal can also be deemed abandoned by the deputy registrar if there has been non-compliance with the Rules as prescribed in Rule 82.24.


What is required for release from custody pending appeal?


An offender may make an application under the provisions of section 679 of the Criminal Code for release pending appeal. It shall be made by Notice of Motion following the filing of a Notice of Appeal. Rule 82.19 sets out the information you must provide to the Court. In particular, you must file an affidavit containing:
a) the particulars of the conviction and sentence;
b) any grounds of appeal not specified in the notice of appeal;
c) personal information including your
    (i) age, marital status, and dependents if any, 
    (ii) places of residence in the three years preceding conviction, 
    (iii) proposed place of residence if released, 
    (iv) employment prior to conviction and expected employment (with address) if released, and
    (v) criminal record, if any; and
d) any unnecessary hardship caused by being detained in custody (where the appeal is from sentence only).

Additionally, you should inform the Court if there are any special individual circumstances relating to your physical and/or mental health or harm to your family if you are not released pending your appeal.

In the case of a conviction appeal, you need to convince the court:
1) the appeal is not frivolous (i.e., it is arguable); 
2) you will surrender into custody when required; 
3) detention is not necessary in the public interest.

In the case of a sentence appeal, you need to convince the court:
1) the appeal has sufficient merit that hardship would result if bail was not granted (e.g. the sentence would be served before the appeal could be heard);
2) you will surrender into custody when required;
3) detention is not necessary in the public interest.


Who do I contact for more information?


For general information, contact:
Prince Edward Island Court of Appeal
42 Water Street, P.O. Box 2000
Charlottetown, PE C1N 7N8

For scheduling information:
Telephone number: 902-368-6024
Facsimile number: 902-368-6774
sfgallant@gov.pe.ca

For filing information:
Telephone number: 902-368-6004
Facsimile number: 902-368-0266
kdmacconnell@gov.pe.ca


 

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