A conviction or a sentence you believe is unjust is not necessarily the final word. Canada’s criminal justice system allows a person convicted of an offence to challenge that conviction or the sentence imposed. However, criminal appeals are governed by strict rules, tight deadlines, and a narrow set of legal grounds. Understanding how the process works is the first step toward deciding whether an appeal is right for your case.
Grounds for Appeal
Under Sections 675(1) of the Criminal Code, if a person is convicted by a trial court in proceedings by Indictment, he or she may appeal:
- On any ground that involves a question of law alone as of right;
- On a question of fact, or of mixed law and fact, with leave (permission) of the Court of Appeal or a certificate from the trial judge;
- On any ground of appeal not mentioned above that appears to the Court of Appeal to be a sufficient ground of appeal, with leave (permission) of the Court of Appeal; and
- Against the sentence imposed, with leave of the Court of Appeal, unless the sentence is one fixed by law.
Under Section 675(1.1) of the Criminal Code, a person who is convicted by a trial court and by way of summary conviction may appeal to the Court of Appeal or a judge of that court with its leave (permission) if the following apply:
- There has not been an appeal with respect to the summary conviction;
- The summary conviction offence was tried with an indictable offence; and
- There is an appeal in respect of the indictable offence.
A person who is convicted or sentenced for a summary offence for which they wish to appeal may do so in the Alberta Court of King’s Bench in their respective jurisdiction.
An appeal is not a new trial. The Court of Appeal or Court of King’s Bench (whichever is applicable, depending on whether you were convicted of an indictable or summary offence) does not re-hear witnesses or reconsider the evidence from scratch. Instead, there is a review of the trial record to determine whether the trial judge made a legal error, factual error or a combination of both. The appellate judge(s) may also review whether the sentence imposed by the trial judge was demonstrably unfit or based on an error.
Deadlines Matter
Where leave to appeal is required, the application must generally be filed within one month of the decision or sentence being provided, unless a specific enactment sets a different deadline. Missing this window can mean losing your right to appeal altogether, although the Court retains limited discretion to extend time in appropriate circumstances. Given how quickly this deadline arrives, anyone considering an appeal should speak with a lawyer immediately after a conviction or sentencing.
The Appeal Process
A criminal appeal in Alberta generally proceeds as follows:
- Filing a Notice of Appeal (and, where required, an Application for Leave) with the Court of Appeal of Alberta or Alberta Court of King’s bench (whichever is applicable, depending on whether you were convicted of an indictable or summary offence);
- Ordering and reviewing the transcripts from the trial or sentencing hearing;
- Preparing and filing a Memorandum of Argument setting out the errors alleged, with the Crown filing a responding memorandum;
- A hearing before a panel of Court of Appeal justices or a judge in the Court of King’s Bench (whichever is applicable, depending on whether you were convicted of an indictable or summary offence), where counsel for both sides make submissions; and
- A written decision, which may dismiss the appeal, allow the appeal and order a new trial, substitute a different verdict, or vary the sentence.
Why Appellate Counsel Matters
Appeals are decided almost entirely on the strength of the written record and legal argument, not on new evidence or a fresh telling of events. Identifying a genuine, arguable error in a trial judge’s reasoning requires a careful, technical review of the transcript and a strong command of appellate procedure. At White and Jeet Law, we assess whether a viable ground of appeal exists, move quickly to protect your appeal deadlines, and advocate for you before the Alberta Court of Appeal and Court of King’s Bench of Alberta.
Disclaimer: The information provided in this blog post is for general educational purposes only and does not constitute legal advice. Criminal law is complex and outcomes depend heavily on the specific facts of a case. If you have been charged with a criminal offence, consult with a qualified criminal defence lawyer immediately.
