For both summary conviction appeals and indictable appeal you can start an appeal after you have been convicted. Appeals have strict time limits. The time limit is normally 30 days from the date on which you are sentenced. For many summary conviction matters or guilty pleas, the conviction and sentence happens on the same day. It is possible to bring an appeal outside the 30 day period, however, you have to ask leave of the court.
A surety is somebody willing to supervise you while you are released on bail and will be responsible for ensuring that you are following all of the conditions of your bail. Depending on certain circumstances, you may be required to live with your surety and the surety will likely be required to pledge a monetary amount towards the bail. This monetary pledge ensures that the surety will properly supervise you –or risk losing their money should they fail to do so.
It is possible to get bail while your appeal is before the Court. This is called bail pending appeal. Bail pending appeal requires a separate motion to be brought before the Court hearing the appeal. The Court must be satisfied of three things:
Preparing a proper “bail pending appeal” application may take several weeks. Therefore, it is important to begin preparing this type of motion as soon as possible after the conviction is registered by the judge rather than waiting for the sentence to be imposed.
It is also possible to have ancillary court orders imposed as part of the sentencing be suspended pending the determination of the appeal; for instance, the mandatory year-long driving prohibition on convictions for impaired driving. Fines, restitution, forfeiture of property or probation orders can also be suspended pending appeal. Like a bail pending appeal, this requires a separate motion before the Court that will hear the appeal.
It is possible for the appeal court to hear new evidence on appeal (“fresh evidence”); however, the ability to put fresh evidence before the court is very limited. The appeal court can consider new evidence if it was not available at trial through the trial lawyer’s due diligence, it is significant and reliable evidence and it could have affected the verdict if it was before the trial court.
A successful appeal means that an appellate court will:
a) Order a new trial
A successful appeal can result in the judge (or judges) ordering a new trial if the appeal court is convinced that the judge at trial made a legal error or the trial was not conducted fairly. The appeal court will set aside a conviction and order a new trial before a different judge. It is then up to the Crown to determine whether or not they will re-prosecute the offence. In some cases, the Crown may decide it is no longer in the public interest to re-prosecute the case again and withdraw the charge(s) rather than re-prosecute the offence.
b) Order an acquittal
In circumstances where the appeal court is convinced that the evidence does not support a conviction, the appeal court may set aside the conviction and order that a finding of not guilty, an acquittal, be substituted. This occurs more rarely than a new trial being ordered.
c) Vary the sentence
If the appeal court is convinced that the sentence imposed by the trial judge was too high or the judge at trial made a legal error during the sentencing, the appeal court may lower the sentence, may order that a sentence be served in the community or may remove any ancillary orders imposed as part of the sentencing (such as weapons prohibitions, DNA orders, fines, restitution or probation).
The costs to appeal will vary depending on whether it is a summary conviction appeal or an indictable appeal, the complexities of the legal issues and the length of the trial. For instance, appeals that require fresh evidence are often more expensive. There are also significant costs up front to pay for the transcripts of the trial.
Every word that is spoken in open court is recorded by a court reporter – whether it is evidence from witnesses or legal argument made by the lawyers. The appeal court requires copies of the transcripts be filed with the court to assist them in deciding the appeal.
For conviction appeals, usually the entire transcript of trial is required. In the case of sentence appeals, the court is prepared to decide the matter on less than a complete record, often supplemented by an agreed statement of facts between the defence and the Crown. This often results in less costs.
For indictable appeals, the cost of transcripts alone are $3.75 per page (for five copies) or approximately $500 – 600 for a full day of court time; thus a five day jury trial in superior court could cost $2500 to $3000 for the transcripts.
For summary conviction appeals, the transcripts are usually shorter but the cost per page is higher at $4.30 per page (for three copies).