Edward Prutschi explains the basis for an appeal and how appeals differ from typical trials.

When people contemplate an appeal, they believe that the only reason they need is to disagree with the judge’s decision. That in itself is not sufficient reason for an appeal and it’s very important, as a law firm, that we make sure that people are realistic about their options. We want to be upfront with our clients about what we can and cannot accomplish for them. We’re careful not to recommend to every person who walks into the door that they spend significant sums on an appeal after already having spent a considerable amount of money on the trial.

The first thing to understand is that in order to succeed in an appeal you need to establish that there has been an error by the trial judge. That error can be an error of fact or an error of law, or a combination of the two. An appeal court is not going to look at your case from scratch and simply substitute its judgment for what the appeal courts think is right. Instead, it’s going to look at the reasoning that the trial judge used and determine whether the trial judge made any obvious mistakes of fact or made any legal errors. Then, based only on that analysis, will there be a determination about whether the case should be referred back for a new trial or whether the judgment itself ought to be changed.

An appeal court is not going to hear from witnesses. It’s not going to hear from the accused; it’s not going to hear from the complainant. It’s not going to hear from anyone else involved in the process. The arguments are made in advance, in writing, and then a very short hearing is held for further oral arguments during which the judges can ask questions of the lawyers. The primary basis for an appeal is reviewing the transcript and the judgment that the original judge handed down. Clients need to understand that an appeal does not give them the chance to tell their story a second time. The appeal court is simply going to see everything that happened in the course of their trial.

One of the downsides to appeals is that transcripts are very expensive, and that as the party who’s bringing the appeal, you’re going to be responsible for ordering the transcripts not only for yourself, but for the Crown Attorney and for all the judges of the appeal court, and in many appeal court situations there could be more than one judge. If a trial has gone on for several days or weeks, the cost of transcripts alone could run into thousands of dollars.

If you need a Toronto Criminal Lawyer, call Bytensky Prutschi Shikhman.

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About the author

I am one of the senior partners at Bytensky Shikhman, a criminal litigation firm in Toronto, Ontario, Canada. In my 25+ year career, I have conducted numerous trials and appeals before all levels of Court in Ontario, defending just about every type of charge in our criminal law. I am also an Adjunct Professor of Trial Advocacy at Osgoode Hall Law School and currently the Treasurer of the Criminal Lawyers' Association of Ontario. I am also an Adjunct Professor for Trial Advocacy at Osgoode Hall Law School, York University and a regular lecturer and placement supervisor for Osgoode's Intensive Programme in Criminal Law.
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