Ontario Criminal and DUI Lawyers
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Ontario Criminal and DUI Lawyers
Toll-Free: 1‑800‑699‑0806

  
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Appeals

  1.   What is an appeal?
  2.   What is a summary conviction appeal?
  3.   What is an indictable appeal?
  4.   What is the duration and time limit of an appeal?
  5.   Can an accused person get bail during an appeal?
  6.   What are the procedures of an appeal?
  7.   What is a factum?
  8.   What happens when an appeal is successful?

Answers

  1.   What is an appeal?
  A.   Sometimes, an accused person is not satisfied with the outcome of a particular trial. In some cases, the person can apply for an appeal at a higher court. The court will review the trial's fairness and correctness and check the way it was conducted by the court. A person can either make a conviction appeal, which questions the decision of the court in finding the person guilty or not guilty, or a sentence appeal, which questions the punishment given by the court and whether the type or the length of punishment was fair.
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  2.   What is a summary conviction appeal?
  A.   A summary conviction appeal reviews the decision of the trial judge in a minor summary conviction matter such as a domestic assault, impaired driving or a theft under $5,000 etc. This type of appeal is made in front of a single judge at the Superior Court of Justice of the given jurisdiction where the initial trial took place. The Court will determine whether the trial judge made any factual or legal errors in convicting or acquitting the accused and/or determine whether the sentence he or she received was fit and proper. If the summary conviction appeal judge finds that significant errors were made by the trial judge, the appeal court has the power to order a new trial or increase or reduce the sentence imposed, as the case may be. In rare circumstances, a summary conviction appeal court has the power to dismiss the charges against the accused.
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  3.   What is an indictable appeal?
  A.   An Indictable appeal is reviewed at the Court of Appeals of the given jurisdiction and is presented in front of three judges. Indictable appeals are more reserved for serious matters, wherein the Crown may prefer to proceed to the trial by way of indictment.
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  4.   What is the duration and time limit of an appeal?
  A.   An accused person can start appealing immediately after conviction, whether it is a summary conviction appeal or an indictable appeal. The appeal must be started immediately because 30 days after the initial sentencing, the accused may not be allowed to submit an appeal any more unless special permission from an appeal court is sought.
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  5.   Can an accused person get bail during an appeal?
  A.   A bail pending appeal may be requested upon the fulfillment of the following conditions: That the appeal has the possibility of succeeding, that the release pending appeal for the accused is not contrary to the public interest and that the accused is willing to submit him or herself on or before the hearing. Before a bail pending appeal can be brought to court, a separate motion must be brought to the court first.
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  6.   What are the procedures of an appeal?
  A.   The issue of an appeal is actually whether the law was executed properly by the justice and whether the decision that the justice arrived at was the one that the justice was entitled to make. It is not really a repeated trial of the case. No new evidence or witnesses are brought before the appeal court, except in very limited special instances. Rather, legal arguments are submitted arguing the fairness and correctness of the final decision and the application of the law based on the existing evidence.
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  7.   What is a factum?
  A.   In order to understand all the facets of the case being appealed, a broad and full outline of all existing facts and arguments called a Factum is required in the courtroom while the hearing of the appeal is undergoing. This factum has to be prepared ahead of time, before the hearing of appeal.
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  8.   What happens when an appeal is successful?
  A.   If the appeal court agrees to the appeal, then a number of things may be affected. Depending on the situation, a successful appeal may bring the judge to order a new trial, at which time the previous conviction is set aside and sometimes even withdrawn.
     In some rare and special circumstances, when the appeal court finds that the evidence is not enough to prove the previous decision of conviction, the court may just acquit the accused person and present a finding of not guilty.
     If the appeal court decides that the previous sentence was made in error, then it may choose to vary the sentence by lowering it or ordering that the sentence be served in the community.
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