This is my most recent column in my firm’s “Right to Know” series about the criminal justice system. This column appeared in today’s Ottawa Citizen.
Appeal process recognizes that even judges make mistakes

Nobody likes to lose.
This is particularly true in the criminal justice system, where the stakes are so high. A person accused of a crime faces enormous jeopardy – the possibility of a criminal record, steep fines, and of course, incarceration. Our legal system depends on many important checks, balances and legal rights to ensure fairness and equity for all.
At the same time, we know that no one is perfect. Judges and juries err. And these mistakes must be corrected.
Under Canadian law, both accused persons and the prosecution have limited rights to appeal unfavourable decisions. Comparatively speaking, the right of the accused to appeal is far broader than that of the Crown.
Unlike many of our legal processes and procedures, the right to appeal is not a pre-existing common law right. It is a creation of Parliament, dating back to Confederation. It is now enshrined in the modern Criminal Code.
A person who has been convicted of an offence can appeal against the conviction, the sentence, or both.
The Criminal Code distinguishes between appeals that involve a purely legal issue and appeals that raise factual or evidentiary considerations. Where an accused appeals on a question of law alone, such an appeal must be heard as “of right”. In contrast, where a question of fact is raised, the court of appeal must grant “leave” to hear the appeal.
The right of the prosecutor to appeal is far more limited. Unlike accused persons who can appeal on questions of fact, the Crown can only appeal an acquittal on a question of law alone.
When considering an appeal of a trial judge’s decision, deference is the order of the day. An appeal is not a new trial. Accordingly, appeal courts are careful not to substitute their judgement and discretion for the findings of the trial judge.
Courts of appeal recognize that the trial judge, having heard the evidence and observed the witnesses first-hand, is usually in the best position to draw conclusions about credibility and reliability.
There are, however, numerous issues that an appellate court will consider serious enough to warrant a new trial, or in some cases, an outright acquittal of the appellant.
A verdict may be overturned where it is unreasonable, or cannot be supported by the evidence. An appellate court will not interfere lightly and will apply a strict test when evaluating the findings of a lower court.
When considering the reasonableness of a verdict, the court of appeal must ask the following question: Could a properly instructed jury, acting judicially, have reasonably rendered this verdict?
It is not only the verdict that can be the subject of attack on an appeal, but the reasoning process of the judge as well. Where a judge reaches an otherwise reasonable verdict, but does so through an irrational or illogical route, the court of appeal is entitled to overturn it. Similarly, if a judge relies on a fact or an inference that is clearly contradicted by the evidence, such a verdict is unreasonable and cannot be allowed to stand.
Where an accused is charged with multiple offences, an appellate court can overturn a decision if the verdicts are inherently inconsistent. That is, where verdicts cannot be reconciled on any rational or logical basis, the only appropriate conclusion for the court of appeal to draw is that the judge or jury was confused about the evidence or otherwise acted unjudicially.
A trial judgement can also be appealed where the trial judge has failed to give sufficient reasons. The importance of sufficient reasons becomes apparent when one considers the very nature of our appeal process. It is crucial that higher courts be able to meaningfully review the decisions of trial judges. Without reasons, the appellate court would be unable to decipher the judge’s reasoning process and his or her understanding of the evidence.
Not all errors must be corrected. The Criminal Code provides that the court of appeal can dismiss an appeal where, notwithstanding the validity of the appeal, no “substantial wrong or miscarriage of justice” has occurred. This entails a finding that the verdict would necessarily have been the same, regardless of the error in the court below.
Aside from the judge’s verdict, both the accused and the Crown may appeal the sentence imposed. Here too, courts of appeal give great deference to the decision of the sentencing judge.
A sentence will only be interfered with when it is “manifestly unfit”. In other words, the court of appeal will not engage in a re-weighing of the factors and sentencing principles, simply because the appellate court would have reached a different conclusion than the trial judge.
Finally, it should be noted that the Crown’s right of appeal against an acquittal is something of a curiosity in our legal system. When it was created in 1892, there was no corresponding right in either English or American law.
In the United States, for example, an acquittal can never be appealed by the prosecution, due to the right of the accused to be protected from “double jeopardy.” In England and Wales, prosecution appeals against acquittals have only recently been allowed, and only where “new and compelling” evidence has been discovered, and a re-trial is deemed to be in the public interest.
While it is important that our trial courts “get it right”, it is undeniable that accused persons – who are often of limited means – lack the resources of the government to adequately fend off prosecution indefinitely. The American right against “double jeopardy” recognizes that fact. As the Fifth Amendment guarantees, no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.”