This article
provides legal
information about defending a criminal
appeal initiated by the Crown Attorney in Ontario of either an
acquittal or sentence. It is
not intended to be used as a
substitute for proper legal
advice. Those looking for
legal advice on the time
limits or process of filing
an appeal with the court
should consult a
criminal lawyer.
Crown Appeals
The Crown (Attorney General) has the
right to appeal both an acquittal (not guilty verdict) and sentence.
The Attorney General only appeals a limited number of cases each year and
each potential appeal is subject to a review process that is triggered by a
request from the local Crown Attorney who prosecuted the case. If the Crown
does decide to appeal, you will receive a notice of appeal that will be
served on you personally, typically by the police. The notice of
appeal will briefly set out the errors alleged by the Crown that form the
basis for their appeal. To learn about appeals initiated by the
defence, read How to
Appeal a Criminal Conviction or Sentence.
Powers of the Crown to Appeal
The Crown can only launch an appeal in
limited circumstances set out in the Criminal Code. A Crown appeal can
only involve “a question of law”; in other words, the Crown is prevented
from bring appeals that involves only factual issues, like whether the trial
judge was right to believe a certain witness’ evidence.
Crown Appeals are Rare
Because of the limitation put on the
Crown through the Criminal Code and their internal review process, the Crown
rarely appeals. The Appeals they do initiate are usually ones that
have a significant public interest and also have a good chance of success.
That is why it is imperative to seek legal assistance.
Process for Crown Appeals
Crown appeals are subject to the same
process and limitation periods as any other appeal. The Crown must serve you
with the notice of appeal within 30 days from the acquittal or sentence,
depending on what order they are appealing. While it is possible for
the Crown to get a special order from the Appeal Court extending the time
period in which to appeal, this is extremely rare. The chances are
very good that if 30 days has passed since your acquittal or sentence, the
Crown has opted against bring an appeal. If the Crown does
appeal, it is up to them to order the necessary transcripts, draft a factum
and prepare an appeal book. This material will be served on you or your
lawyer at some later time. Your acquittal or sentence only changes if
the Crown is successful on their appeal.
What Can the Court of Appeal do
if the Crown Appeal is Successful?
If the Crown has appealed conviction,
the Appeal Court may order you back to have another trial on the same
charges or they may substitute a conviction and proceed to sentence you.
If the Crown successfully appeals sentence, the Appeal Court may increase
the length of the sentence or change the structure of the sentence (for
instance, they may order the remainder of a conditional sentence to be
served in jail).
What to do if you
Receive a
Notice of Appeal
The most
important thing to remember is do not panic. Even though Crown Appeals
are rare, as an appellant the Crown often faces an uphill battle to convince
an appeal court to overturn an acquittal imposed by another judge or by a
jury, or the sentence. With an experienced lawyer assisting you to
respond to a Crown Appeal, your chances drastically increase that the Court
will choose not to interfere and dismiss the appeal.
If you, or
someone you know requires
assistance with a Crown initiated sentence
appeal or appeal of an acquittal, you
should immediately contact a lawyer
as the clock may already be
ticking on the appeal
deadline. For
a free consultation, I can be reached at
(416) 297-7200.
