Law 12MUNDY 2008

Purpose of appeal is to have a trial or a portion of a trial reviewed by a higher court

First established in 1923 BC Court of Appeal hears appealed cases Judges for this court are usually appointed

from lower courts

Either Crown or defence can apply for appeal (must do so within 30 days of trial’s completion)

Judges will grant (approve) an appeal if there appears to be merit (good reason) to proceed

Party making appeal = appellant Other party = respondent

Two methods: 1. Defence appeals

◦ Sentence◦ Conviction◦ Verdict (unfit to stand trial, not criminally

responsible) 2. Crown appeals

◦ Verdict (given of unfit to stand trial, not criminally responsible)

◦ A dismissal of a case

Appeals are brought on a basis of either:◦ QUESTION OF FACT – evidence of case◦ QUESTION OF LAW – whether evidence should

have been admitted

Transcripts are used to review case (forwarded to court by appelant)

If transcript is unusable, a trial de novo (a new trial) can be ordered

2nd type of appeal: brought on purely a question of law or jurisdiction (instead of question of fact or mixed law & fact)

This type of appeal heard in appeals division of Supreme Court of BC by one judge

Appeal reviewed through transcript and agreed statement of fact

Accused can appeal conviction for:◦ A question of law◦ Question of fact or mixed law and fact◦ Any other grounds (granted by court)

Accused can appeal sentence also

All appeals by accused (except question of law alone) must be granted by court in order to proceed to Appeals court

Crown can appeal:◦ An acquital◦ An order that quashes an indictment or stays

proceedings◦ Sentence

Documents to be submitted for appeal:

Transcripts from trial of evidence Charge to jury, reasons for decision A factum (summarizing appelant’s and

respondent’s positions towards appeal – submitted separately by each)

New evidence is only presented at appeal if relevant, credible and could affect result in trial

3-5 judges hear appeal Decision made based on majority ruling

(whichever side is favoured by the most judges)

Majority explains their decision (in writing) Dissenting also explain their reasons

Only appeals based on questions of law may be brought before Supreme Court of Canada

Appeals accepted based on:◦ Provincial appeal court agreed with conviction, but

at least one judge dissented◦ Provincial court overruled an acquital◦ In trying more than one accused jointly, where

other was considered acquited◦ Accused found not criminally responsible, and

upheld or imposed by appeal court

Whatever decision is made, stare decisis (to stand by previous decisions) the lower courts must follow

If appelant unsuccessful, case dismissed This may happen even if evidence/transcript

shows errors in trial, so long as errors were not serious enough to create a miscarriage of justice

Appellant may be successful if:◦ Evidence does not support verdict◦ Error of law was made during trial◦ Miscarriage of justice made

If appellant successful:◦ New trial ordered, or◦ Judgement of trial court changed (if trial by judge

alone)◦ Retrial ordered (if trial by judge and jury)◦ Case remitted to trial court and directed to

impose a sentence