Ultimately, the client decides whether to appeal, but we always lay out the points that they need to consider. One point is the length of the sentence and whether the client feels he or she can live with that sentence.

In a situation where a person is given a strict probation or a driving prohibition, an appeal may not be an absolute necessity. They may wish to consider that before they engage in this expensive time consuming process that has no guarantee of victory at the end of the day. On the other hand, when a person faces a jail sentence particularly a lengthy jail sentence, it starts to become more and more important to bring an appeal and to exhaust every possible avenue.

Though the severity of the sentence is a very significant factor in a person making a decision about whether or not to appeal, it’s also important that people be very realistic about their chances of appeal. We try to be very up front and honest with clients about that although the odds can sometimes be difficult to determine when we have very little information about the case. We constantly remind people that once you’re in an appeal situation you are facing an uphill battle. You’re no longer presumed to be innocent because you’ve already been found guilty. You’re going to have to prove to the appellate court that there was a significant mistake made in your trial that caused a wrong judgment to be reached.

Perhaps the most important thing for clients to remember is that victory at the appellate court level usually means a new trial. In other words, the Court of Appeal is not going to say that the previous judge was wrong and therefore you are not guilty. It may happen on a rare occasion but, in the vast majority of successful cases, all the appeal court will say is that there were errors in the trial judge’s decision-making process and that things were said to the jury that should not have been said and thus a new trial is ordered. All of the effort of an appeal brings you back to step one and you’re back in the same place you were in on the first day you were charged.

Once again you need to retain counsel and go back through the witnesses and go to court and be subject to a bail. There are times where an appeal appropriate as the consequences are so serious that going through all of that effort just to win a new trial is crucial. In fact, you have significant advantages at the second trial because the Court of Appeal has corrected the errors that the original trial judge committed. You do, however, need to be prepared for a long financial and emotional commitment when you begin the appeal process.

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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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