If you have been convicted of a crime, you can appeal the verdict. Generally, the Appellant must establish that the judge made a legal or factual error. Even if there was no error, you still may have grounds for an appeal; for example, if there is new evidence that calls the guilty verdict into question. While appeals are very different from trials, we take a similar approach. We meticulously pour over every detail in the trial transcripts and exhibits, and examine the judge’s reasons (or jury instructions) for legal and factual errors. We also take the time to explain the process and legal issues to you every step of the way.
You can also appeal your sentence or you can also appeal your conviction and your sentence in the same appeal. The sentencing judge must consider a variety of factors in arriving at the appropriate sentence – that includes factors that are in your favour (called mitigating factors). Mistakes can be made and sentences can be too harsh. If you believe you received an unfair sentence, we will review your case, and the sentencing decision in detail. We will reference the case law regarding the appropriate range of sentencing for the convicted offence(s).
Frequently Asked Questions
I admitted I was guilty to the police - is there anything I can do?
If you have made a confession to the police (or any other statements that are harmful to your defence), there may be a solution. You may be able to get the statement excluded from evidence. There are two ways to do this. First, the police may have breached your Charter rights in order to obtain the statement. If they did, this can result in your statement not going into evidence.
Second, the prosecution has to prove beyond a reasonable doubt that any statement to police is voluntary. If the statement was the result of a threat or promise, it may be ruled involuntary. For example, if the police said they would go easy on you if you talk to them, or that it will help you get bail, these would be inducements. If the police told you that if you don’t speak to them, they will charge a friend or family member, that would be a threat.
We have successfully argued for the exclusion of many harmful statements made by our clients. However, this is a good time to remind you that this result is not guaranteed and therefore, just as we mentioned above, you should never speak to the police.
What does an appeal court do?
On a conviction appeal, the court will either grant the appeal or dismiss it. Granting the appeal means overturning the conviction. It can also grant the appeal in part (for example, the court might overturn a conviction for some offences but not for others). If any of the convictions are overturned, the outcome depends on the nature of the error the trial judge made. In some cases it will substitute an acquittal for the conviction. In others, it will order a new trial. If it’s a new trial, it will not be the same judge who presides over your second trial. In some cases, the prosecution may decide to not proceed with a new trial and instead withdraw or stay the charges.
On a sentence appeal, the court will either grant or dismiss your appeal. If the court grants the appeal, it will generally replace the old sentence with a new one.
What Are Some Common Grounds of Appeal?
A successful conviction appeal generally requires the Appellant to establish that the trial judge made a legal or factual error. Appeals are a large and complex area of law. The following list is only a small sample of common arguments:
Improperly Admitting Evidence: The trial judge may have admitted evidence that he or she should not have, pursuant to the rules of evidence. For example, the trial judge may have improperly admitted “bad character evidence” or hearsay. If that evidence was then used to convict you, you may successfully appeal the conviction.
Dismissing a Charter Application: The trial judge may have made an error by finding that certain police conduct was not a breach of your Charter rights. The trial judge may also have found that the police did breach your rights, but still admitted the evidence against you. You can appeal that decision and argue that the trial judge should have excluded the evidence.
Unreasonable Verdict: This ground of appeal can be raised in circumstantial cases. A circumstantial case is one where there is no direct evidence, and the trial judge is asked by the prosecution to draw an inference that you are guilty. The judge can only find you guilty if the only reasonable inference is guilt. If there is a reasonable inference that you are not guilty, you may have your conviction overturned.
Darren F, 2020
Mr. Rolfe impressed me from the first moment he represented my son. He was extremely knowledgeable, thorough, and professional. The matter went all the way to a trial and it was scary, stressful time. Our family was so nervous. We always felt well protected, and represented by Mr. Rolfe (Erec). We did not feel that way with the first lawyer. His skills in the courtroom were something else. He’s a pro. Highly recommended.