Should I Appeal My Criminal Conviction or Sentence?

Lately, lots of prospective clients have been asking me the very brief but important question: "should I appeal?" Wrapped up in those three words are all sorts of hopes, fears and realities, at least some of which I'll try to sort out for you in this post.

The fundamental hope is that the appeal will improve upon the results at trial. When clients ask me what their chances are on appeal, I officially need to tell them: "it depends." Depends on the law and facts at their trials. Depends on which judges they draw on appeal. Depends on in which direction the judicial appellate winds are blowing in Canada during a particular year for the legal issues in question.

But statistically I can tell them that about 1/3 of criminal appeals are successful in some respect according to Ontario Court of Appeal figures. That criminal appeals have a higher rate of success than civil appeals (where you've only got a 1 in 4 chance) is consistent with courts wanting to do everything possible to protect the rights of accused from wrongful convictions or serious rights violations. 

Hopes that an appeal will completely make charges go away do need to be managed. A successful conviction appeal likely means the ordering of a new trial. Not really such a bad result, because the conviction is overturned, but you need to be prepared both psychologically and financially for another trial. The Crown won't always proceed with a new trial, but you need to be prepared just the same.

Successful sentence appeals are more to the point: either the court of appeal will substitute an appropriate sentence itself, or less commonly will send the case back to the trial judge for resentencing based on the correct legal principles. A new sentencing will at least still be a relatively quick process compared to a new trial.

It's rarer for a court of appeal to overturn a criminal conviction and enter an acquittal itself - rather than letting the trial court reconsider if an acquittal is justified during the course of a new trial - but it does happen. 

You might wonder if things could get worse if you appeal. The answer is probably not in criminal cases. The Crown will rarely cross-appeal just because you have started an appeal, as Crown appeals require a strong public interest. So appealing your conviction or sentence will usually mean at worst that you're stuck with the trial result if you lose, not that you'll get convicted of extra offences or have your sentence increased.

Plus the general rule in criminal matters is that the Crown neither seeks nor has awarded against it costs. So while you won't be able to recoup your legal fees out of a successful criminal appeal, you also won't be risking the Crown seeking costs against you if you lose. 

An appeal will cost you more money, after you may have already spent quite a bit on your criminal defence at trial. It might cost less or more than your trial cost, depending on the length of your trial as well as the complexity and number of the issues to be appealed.

Plus you'll need to budget for transcript costs, which can be in the range of $500 or so per day of trial for the first copy and then lower fees for extra official copies. You usually need five transcript copies if proceeding to a court of appeal, but the precise number depends on how many judges will be sitting on your appeal and the rules of court.

The upside of appeal costs is that they are much easier to predict in advance than trial costs. Criminal appeal lawyers will usually quote you a flat fee for the appeal including travel and disbursements other than transcripts, so you can assess in advance if it's worth it to you. Legal Aid Ontario (LAO) will also fund appeals that have good prospects of success; if you financially qualify (the income cutoff is quite low), the process is you find an appellate lawyer to first provide LAO an opinion, and then a LAO committee decides whether or not to provide funding.

So, should I appeal? I would say the answer is definitely "YES" if your case isn't totally hopeless (these are rare), there was a big downside to the trial judgment (acquiring a criminal record, serving a long prison sentence, paying a large fine or forfeiting considerable assets), you can afford it, and there's a legal basis for the appeal. You need to understand that the appeals process is not a new trial, and that legal rather than factual arguments predominate on appeal. You can't appeal just because you don't like the trial result; you should retain a lawyer who can craft strong legal justification for why the trial went off the rails, and why an appeal court should do something about it.