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Guidebook for Indictable Conviction Appeals

 

1.1 Before you start

This online guide explains how to appeal a conviction for an indictable offence on your own. You can find out whether you were convicted of an indictable offence by contacting the court where you were convicted.

Before you go ahead with your appeal, it is a good idea to find out whether you can get legal aid through Legal Aid Saskatchewan. You should call the Legal Aid office nearest you. You can find a list of legal aid offices here:

http://www.legalaid.sk.ca/contact/office_list.php

If you’ve been refused legal aid and do not have enough money to hire a lawyer, you might be able to get a court-appointed lawyer or pro-bono lawyer.

1.2 Reasons for appealing your conviction

The purpose of a conviction appeal is not to retry your case. You cannot ask the court to hear the evidence again to determine whether you should have been found guilty. According to s. 686 of the Criminal Code, an appeal court can only set aside your conviction for one of the following three reasons:

  • the verdict is unreasonable or cannot be supported by the evidence;
  • the judge made an error of law; or
  • there was a miscarriage of justice.

Unreasonable verdict

You may challenge your conviction if the verdict is unreasonable, given the evidence presented. Challenging a conviction on the grounds of unreasonable verdict focuses only on the weakness of the evidence. You must persuade the appeal court that the evidence was too weak for a reasonable judge or jury to have found you guilty.

For example, if the only evidence linking an accused person to a bank robbery came from an eyewitness who wasn’t certain she identified the correct person, the appeal court might consider overturning the conviction.

However, it is very difficult to succeed on this ground of appeal. The appeal court is rarely interested in arguments about the credibility of witnesses or the importance given to various pieces of evidence at the trial. For example, you might think the trial judge was wrong to believe the Crown’s witnesses instead of you or your witnesses. But that kind of appeal rarely succeeds.

Error of law

You may appeal your conviction because an error of law was made at the trial. If you establish that an error of law was indeed made, your conviction may be set aside. Wrongful admission of evidence, a wrong interpretation of a Charter right, or a misdirection (giving the wrong instructions) to the jury on a crucial question of law are all examples of errors of law.

However, if the court thinks that even without the error the verdict would still have been the same, it will not allow the appeal. Section 686(1)(b)(iii) of the Criminal Code permits the court to dismiss an appeal when the verdict could not possibly have been different.

Miscarriage of justice

You may appeal your conviction because of a miscarriage of justice. If there are errors of both fact and law that the court considers to be a miscarriage of justice, your conviction will be set aside.

Examples of a miscarriage of justice include things such as a jury member being biased or a judge refusing to provide an interpreter for an accused person who does not understand English.

 

 

Next - Step 2
File a Notice of Appeal