Law 12 MUNDY 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

 2 nd 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