A good trial lawyer will be very alive to errors that a judge is making in the course of a trial, though in the midst of the trial there’s virtually nothing you can do about them.

A judge has complete control and discretion over how he or she is making the rulings as the case progresses. The only thing you can do is to make sure that you are objecting during the trial and that you are placing your objection on the record. When the transcript is read by the Court of Appeal a year down the line, it will be apparent that you brought your issues to the fore and made the trial judge aware of it, even though the judge didn’t accept your arguments.

All of our trial lawyers are trained to work toward that. They are aware that, if things don’t seem to be going their way, they are at least preparing things as best as possible for appeal. When we look at appeals, we very much appreciate a trial lawyer who has prepared the record in that way, and made it obvious to us and to the Court of Appeal what the issues are.

A consequence of not raising these objections is that the appeal court could say: “You know, you may be right that the judge got this issue wrong, and that the judge should have done something differently. But since the trial lawyer didn’t object at the time, it’s our view that the trial lawyer felt this was fine and didn’t have a problem with it. We’re not going to let you bring up an issue for the first time on appeal that you never tried to argue back at the trial courts.” The Court of Appeal won’t let you use one defence in the trial and then decide to use a different one at the Court of Appeal. You need to make sure that your trial lawyer is raising his objections throughout the trial, so that when it comes before a Court of Appeal, they can say “We see that you’ve tried this strategy and we see that it was denied to you by the judge. Now, it’s just a question of whether we agree with that decision or not.”

One of the toughest things Appeals lawyers will ever do is listen to a judge’s charge to the jury in cases of jury trials. While they are listening to what the judge is saying, they’ve got to be very quickly running it through their head and deciding if it is right or wrong and what their concerns might be. As soon as the judge is done the charge to the jury, lawyers are given an opportunity, with very little preparation, to say what they think the judge did wrong and why. The judge may agree with them and provide some sort of correction to the jury. If the judge refuses, at least they’ve raised the issue and the appeal court knows they’ve raised it because it’s on the record.

If you, or someone you care about, is dealing with criminal law issues and need criminal defence services by a Toronto Criminal Lawyer from BSB in the Toronto, Ontario Region. Contact Bytensky Prutschi Shikhman for a consultation.


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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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