APPEALS

An appeal is a request to a higher court to change a verdict, a sentence or some other special order made by a lower court.

The right to appeal exists only in certain situations; in others the Court of Appeal can grant leave (permission).

Once an appeal has been launched, the incarcerated appellant may be released on bail until the appeal is heard. The judge who hears this request must consider, among other things, the prima facie merits of the appeal itself. This is to ensure that frivolous appeals cannot be routinely used to defer the serving of a prison sentence.

Both the Crown and the defence may appeal the verdict and the sentence. Essentially the Crown is limited to raising legal, not factual, issues.

In summary conviction cases, the appeal can be made to either a judge of the Supreme Court of Nova Scotia or the Nova Scotia Court of Appeal. But most summary conviction cases are taken to the Supreme Court of Nova Scotia. Appeals in indictable cases must be taken to the Nova Scotia Court of Appeal.

An appeal may be directed at the verdict, the sentence, or both.

Verdict appeals

An appeal of the verdict usually requires that a legal error was made at the trial or that new, exculpatory evidence has been discovered. When appealing a verdict, the prosecutor must show that the trial court made an error in interpreting or applying the law. And, the Court of Appeals must be satisfied the verdict might have been different if the error had not been made. An example of an error of law may occur when important evidence is wrongly excluded at the trial.

When appealing a verdict, the accused must show that: (i) the conviction is unreasonable and cannot be supported in evidence, (ii) the conviction entails a miscarriage of justice, or (iii) the trial judge made an error of law. In the last case, the appeal can be denied if the court concludes that notwithstanding the legal error, no substantial wrong or miscarriage of justice has occurred.

If the accused was acquitted at a trial by jury, the Court of Appeals may not convict the accused, but it may order a new trial.

Possible outcomes of a verdict appeal:

· The court may decide not to hear the appeal.

· The court may decide to hear the appeal and dismiss it.

· The court may substitute a conviction on a lesser but included offence.

· The court may order that the offender be acquitted.

· The court may order a new trial.

The right of the prosecutor to appeal acquittals and to have new trials ordered is much broader in Canada than in the United States or Europe.

Sentencing

When appealing a sentence, the Crown must persuade the Court of Appeal that either the judge did not correctly apply the sentencing principle or, that the sentence is clearly unreasonable. The Court will not change a sentence simply because it may disagree with the sentence.

The Court of Appeals has a broad jurisdiction to consider the appropriateness of the sentence within the limits prescribed by law. But the Supreme Court held that it should consider an appeal of a sentence when (i) there was an error in principle, (ii) the judge failed to consider a relevant factor, or (iii) there was an overemphasis of the appropriate factor.

Appealing to the Supreme Court

Either the prosecutor or the accused may appeal to the Supreme Court. Appeals to the Supreme Court are of right on any question of law form which a judge in the provincial Court of Appeal dissents, and by leave on any matter of national importance.

The Attorney General employs a similar test in determining whether leave should be sought. So, it is not enough to say that a decision from which leave to appeal may be sought is wrongly decided: counsel must be able to articulate the “national importance” of the issue(s). Appropriate cases may be, for example, ones which conflict with other appellate decisions, ones raising significant Charter or division of powers questions, or matters raising concerns about the scope of police or Crown powers.

Crown Policy in deciding to appeal

Two issues must therefore be considered when deciding whether to appeal. First, is there a proper basis, both in law and on the facts, to believe that the judgment is wrong? If there is, does the public interest require an appeal?

These criteria are similar to those for deciding whether to prosecute, but with two important differences. First, since the facts have already been established at trial, it is important to ensure that significant questions of law are litigated on the basis of a proper and compelling record of evidence. Second, because of the need to be selective in bringing appeals, the public interest plays a much more important role in the decision to appeal than it does in deciding whether to lay charges. In most potential appeals, the controlling principle is whether the public interest requires an appeal.

Factors which may be considered when deciding whether the public interest requires an appeal include the following:

1. Is the issue raised by the case of widespread importance for the effective enforcement of the criminal law, or is its impact confined largely to the immediate case?
   
2. Does the seriousness of the offence or the circumstances of the offender demand a reconsideration of the case?
   
3. Have courts differed in interpreting the issue raised?
   
4. Could the decision impair the effective enforcement of the criminal law if left unchallenged?
   
5. Could the trial decision impair the enforcement or administration of a significant government policy initiative (for instance, confiscating the proceeds of crime, reducing domestic violence) if left unchallenged?
   
6. Will the resources required to prepare and present the appeal significantly outweigh the value of pursuing the case further?
   
7. Is there a reasonable prospect that the appeal court may award costs against the Crown even if the appeal has merit?
   
8. In sentence appeals, was the sentence clearly below the acceptable range of sentence (and not merely at the low end of the acceptable range), so that a successful appeal should lead to a significant increase in sentence?

The application of and weight to be given to these and other relevant factors will depend on the circumstances of each case.

Irrelevant Criteria

A decision whether to appeal must not be influenced by any of the following:

1. the race, national or ethnic origin, colour, religion, sex, sexual orientation, political associations, activities or beliefs of the accused or any other person involved in the case;
   
2. Crown counsel's personal feelings about the accused, the victim, or the trier of fact;
   
3. possible political advantage or disadvantage to the government, special interest group or political party; or
   
4. the possible effect of the decision on the personal or professional circumstances of those responsible for making the decision to appeal.