Why Criminal Appeals Are the Easiest of All Appeals to Win: Winning Your Right to a New Trial, Reduced Sentence or Acquittal

You should never approach your criminal defence with the attitude of: no big deal if I lose my trial, I can always appeal!

Your Best Chance of Acquittal is Always at Trial, Not Appeal

Your best shot at winning any criminal case being brought against you will always be at the trial court. Hopefully, your criminal defence lawyer will be able to convince the Crown prosecutor to completely drop your charges prior to trial. Or perhaps negotiate some kind of acceptable plea deal for you that involves lesser charges, or a minimal sentence.

But even if you’re forced to go to trial, because you are entitled to the presumption of innocence, and you’ll benefit from the very high criminal standard of “proof beyond a reasonable doubt” being required in order for a court to enter a conviction against you, your best chance for an acquittal on all or some charges, and your best chance for a reasonable sentence if you are convicted of anything, will be before the trial judge.

Your Odds are 1 in 3 of Winning a Criminal Appeal

However, if you are convicted of a crime you wish to continue to contest, you should know that appellate court stats in Canada give you about a 1 in 3 chance of success of some sort on appeal. Which really are pretty good odds.

That 1 in 3 doesn’t mean that you’ll necessarily be acquitted on appeal. Usually, it means you’ll receive a new trial (where unfortunately it’s always possible you’ll be convicted again, but hopefully not). Sometimes it means you’ll receive a reduced sentence on appeal. Occasionally it does in fact mean you’ll be totally exonerated by the appellate court.

Vast Majority of Appeals SCC Agrees to Hear Are Criminal Cases

Even if you have to fight your criminal case as high as the Supreme Court of Canada, your odds of getting the highest court in the land to hear your criminal appeal are way better than for any other kind of appeal.

In 2022, only 27% of all SCC leave to appeal applications involved criminal cases (124 leave applications in total). However, 65% of all appeals heard by the Supreme Court of Canada involved criminal cases (35 in total).

An Accused’s Appeal Doesn’t Raise Risk of a Crown Cross-Appeal

Do be aware that the Crown could appeal your acquittal or sentence, just like you can appeal your conviction or sentence, though Crown appeals aren’t all that common. Previously in Canadian history, criminal Crown appeals weren’t even permitted, with the principle being that the trial judge’s decision should always be deferred to. But in more recent decades, the Crown will from time to time choose to appeal acquittals where it is believed the acquittal was not legally and factually sound, or also choose to appeal sentences that are claimed to be inadequate.

But having previously conducted many criminal appeals for the Crown up to the level of the Supreme Court of Canada - both bringing the appeals on behalf of the Crown and defending against appeals brought by accused - I don’t believe that an accused bringing an appeal raises the risk of a cross-appeal by the Crown (to for example attempt to raise a trial sentence). Ultimately the Crown is required to act in the public interest, unlike private litigants who are certainly engage in tit for tat civil appeals.

Two Keys To Winning a Criminal Appeal is Be on Time & Hire Experienced Appellate Counsel

Typically you only have 30 days in which to appeal from the date of imposition of sentence. Even if you don’t have the money at the point to hire a lawyer, or are still trying to find a lawyer, you absolutely can’t miss that 30 days appeal window. It’s very strict. Far better to serve and file a very simple Notice of Appeal that you draft yourself in a timely way, where the appeal can later be fixed up by a lawyer, than to miss that 30 day deadline in hopes that your lawyer can later ask for an extension. Extensions are rarely granted.

Because the burden on an appeal will rest entirely upon you, unlike at trial when the burden of proof rested entirely upon the Crown, you absolutely need to hire an experienced appellate lawyer for your criminal appeal to stand a reasonable chance of success. Perhaps counterintuitively, appeals of very complex criminal cases where trials spanned many weeks will cost far less than the trial (because the appeal will only be one day in court, but may require many days or weeks of preparation). Whereas appeals of very simple criminal cases may cost more than the criminal trial (because there will be a cost for the transcripts of evidence, the appeal will still take a day in court, and drafting a complex factum of legal argument as well as analyzing the transcripts could take up more time than the entire trial required).

It’s always best to anticipate an adverse result at a criminal trial, and plan accordingly for an appeal well in advance of the trial verdict, regardless of how confident you might be about a positive trial outcome. That way you can budget for an appeal in advance, interview potential appellate lawyers (as many trial lawyers don’t do appeals), and even plan for a bail pending appeal application (as you don’t want to get stuck serving out your sentence while your appeal is pending).

Gordon S. Campbell is a criminal appellate lawyer who practices throughout Canada up to the level of the Supreme Court of Canada.