In criminal appeals the appellant can appeal from conviction, or sentence, or both.

Conviction Appeals

On a conviction appeal, the Appellant most commonly attempts to show that the trial Judge made a ‘reversible error’ that affected the outcome. Reversible error can arise at any point, from pre-trial motions to jury selection to how a question from jury was answered by the trial Judge, and just about anything in between.

There is also a category of errors causing a ‘miscarriage of justice’ which require the result to be overturned even if the error did not demonstrably affect the result. In cases of reversible legal error or miscarriage of justice, an order for a new trial to be held is the remedy available on appeal.

Another form of legal error may also be argued, under the heading of “unreasonable verdict”. This applies to cases where the Appellant can show that aside from errors or other problems with the trial, the evidence in total just cannot support the result. If the Appellant can succeed on this ground, the remedy on appeal is for the verdict(s) of guilt to be quashed and an acquittal to be entered. No new trial is required.

Sentence Appeals

On a sentence appeal, the Appellant must show that the sentence imposed by the trial Judge was demonstrably unfit or tainted by error in principle. As stated in the R. v. M. (C.A.) case by the Supreme Court of Canada:

Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.

In another sentencing case from the Supreme Court of Canada, R. v. Shropshire, it was put this way:

An appellate court should not be given free reign to modify a sentencing order simply because it feels that a different order ought to have been made. The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentence should only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearly unreasonable.

Results on Appeal

The Court’s comment in R. v. Shropshire above, about the trial judge’s “advantage of having seen and heard all of the witnesses” reflects a high degree of deference to trial courts’ decisions. Courts of appeal defer as much on conviction appeals as sentence appeals. While the presumption of the accused’s innocence predominates the trial phase, a presumption of regularity predominates the appeal phase. Appeal courts tend to presume that what has been done ‘below’ was proper and just. Everything an appellate lawyer does in informed by the over-arching dynamic.

Ideally, all accused persons should have counsel at all stages of the criminal process, from the very outset of any matter. For appeals this is even more imperative. While there are some ‘exceptions that prove the rule’, it is difficult to see how an appellant without legal training could secure a successful result when appeal courts require a clearly demonstrated legal error or miscarriage of justice before any intervention in the result is possible.

Fresh Evidence

Less common but sometimes essential on appeal is where the Appellant applies to bring fresh evidence before the court of appeal. This is an exception to the general practice by which appeals are based only upon the trial record (transcripts and exhibits). There are strict rules governing the admissibility of fresh evidence, essentially requiring that it be something that was not available at the time of trial, is capable of belief and capable of affecting the outcome if believed. If the evidence is admitted, it can be used in support of any argument on appeal from conviction and/or sentence. Mr. Clark understands this process in law and in practice, having successfully proffered fresh evidence on several appeals (see for example R. v. C.)

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