Sometimes one of our clients, will win their case and be very happy, ecstatic, and we did a lot of hard work to win an impaired trial or a sexual assault trial, or an aggravated assault, or a break and enter trial, and low and behold, within thirty days, the Crown is filing a Notice to Appeal. To the higher court. So let’s say we are the Ontario Court of Justice for trial, well, the appeal route would be the Superior Court of Justice. So yes, the Crown can, choose to appeal a case. Now, when will the crown do that? Well the Crown will really have to analyze the evidence of the trial and the judge’s decision. And the Crown will have to say to himself or herself, “Are there major errors of law that the judge did?” In other words, the judge did not apply the law properly in acquitting the accused. Or did the judge make major errors of fact, in the judge’s decision did they miss-state key and essential fact which led to the acquittal.
So you get this Notice of Appeal. And then the Crown, if they proceed with the appeal, and it has to be served on you within 30 days by the way, a Notice of Appeal, that’s just or one or two page document. But the work for the Crown and defence have only just begun, at that point because now the Crown is going to have to produce a very written legal argument which is based on the evidence. So transcripts of all of the evidence, that they produced, each, what each witness said and the Crown is going to have to analyze the law, summarize it, quote and site and verse, and page of the transcript, and then the defence appeal specialist, criminal lawyer, will respond to that, in a factum as well. That’s all presented at the appeal court, and you go there for a day or two arguments to determine whether there should be a new trial. Or whether the accused should be convicted.
Now, first of all, most appeals are not successful. Whether the Crown appeals or the defence appeals. And by the way a defence can appeal a loss, as well, if you are convicted, if you feel, there’s major errors in the fact of law, you can do that. So now the judge has to make a decision, the judge has to decide, will look, are these, first of all, are there errors of fact, and are there errors of law that the judge made. And second of all, if they are insignificant. Well that’s not going to lead to anything. There has to be a very significant error which would have led to a very different decision. Some might put it that way. An error of law or error of act. Usually when a Crown appeals successful, in almost all cases, it simply leads to a new trial. We go back to square one, we have to do the trial all over again, fortunately, that hasn’t happened too much in my career, but it’s very disappointing when that happens, but we gear ourselves up and we continue. And it’s expensive unfortunately, for the client, they have to go through a trial, an appeal, and then another trial, and it’s very important, you know, if you, got an appeal, it’s a very important, to retain a lawyer who is an appeal specialist, that’s all they do, it’s not trial work, it’s different form. It’s written legal argument, and its oral legal argument, it’s got nothing to do with calling evidence, you don’t, in very rare exceptions, you do not call evidence at an appeal. There are exceptions to every rule when there is fresh evidence that arises for the defence by the way. So anyway, it is disappointing when that happens and I always warn the client, look the Crown has thirty days to appeal. But usually I have a pretty good sense. When we’ve won a case, I have a very good sense whether the judge made an error in fact or law, and sometimes we get Notice of appeal and I just laugh at it and other times I go “well they, we have an argument here and there’s some grey areas”. And we are going to have to girt our loins here and fight, fight, keep fighting along to the appeal court. So that’s a short answer to whether the Crown can appeal after you have been acquitted in your criminal case.