There are two types of appeals allowed by the Criminal Code. The first is appealing a conviction, which is asking the appeal court to overturn a finding of guilt after a trial. The second type of appeal is called a sentence appeal. This type of appeal is asking the appeal court to alter the sentence in some way. Different rules apply to each type of appeal.
Summary Conviction Offences are appealed to the Court of Queen’s Bench. Indictable Offences are appealed to the Manitoba Court of Appeal.
An appeal must be filed within 30 days of the disposition of the matter, which is usually the day the sentence was pronounced by the judge.
An appellate court must show great deference when reviewing a sentencing decision. An appellate court can only interfere with a sentence when the sentence is demonstrably unfit, demonstrably inadequate or excessive, clearly unreasonable, or when it has been arrived at as a result of an error in principle.
An error in principle includes failing to consider a relevant factor, taking into account an irrelevant factor, failing to give sufficient weight to a relevant fact or overemphasizing an appropriate factor. The Manitoba Court of Appeal discusses these rules in R. v. Draper, MBCA 2010 35.
If the appellate court finds that the sentencing judge made an error, the appellate court can decrease or increase the severity of the sentence, or leave the sentence unchanged.
In some cases, it may be possible for the convicted person to be released on bail while they wait for their appeal. It can take some time to secure the person’s release and there is some risk involved in attempting bail pending an appeal.
It is also important to remember that the convicted person’s conduct between being sentenced and their appeal being heard can be considered by the appeal court. Perfect compliance with bail conditions before sentencing and after released pending the appeal can have a positive impact on the person’s appeal.
Transcripts of the matter must be ordered, including the sentencing arguments and reasons for sentence. The lawyers in the appeal are required to file written materials, including their legal argument and supporting case law. There are time limits set by the court for submitting the written materials.
Most cases are not worth appealing. The appeal court would defer to the lower court’s decision in the vast majority of cases if all cases were appealed. However, there are occasions where a properly conducted appeal can substantially reduce the severity of the sentence.
Note: This page is not legal advice and should not be relied upon as such.