Criminal Law

How to handle an in-custody appeal

By Staff

Managing client expectations is a key part of handling in-custody appeals, Toronto criminal lawyer Lindsay Daviau tells

“Appeals are quite different from trials in a number of ways that clients may not understand,” says Daviau, who practises with Rosen & Company Barristers and frequently acts for clients on appeals of conviction and sentence. “So you really have to try to explain the process to them and manage their expectations.”

From a practical point of view, she says communication tends to be more challenging for an in-custody appeal, compared with a trial where the accused may have been free on bail or held on remand.

“By the time work starts on the appeal, the client has usually been shipped out of the local facility to a penitentiary, which can sometimes be out of province,” she says. “That can make it difficult to get in touch, and clients don’t always understand that you won’t be able to get out and see them as much as you would during a trial.”

Still, Daviau says the more technical and focused nature of an appeal means there’s less need for the day-to-day contact and preparation required by the intensity of the trial process.

But that may take some explaining to a layperson who views the appeal as a chance to re-run the trial, she adds.

“You get clients who say they want to call this or that witness, and I have to talk them through why that will not happen,” Daviau says. “An appeal is typically based entirely on the record before the court, and you’re looking at distinct legal issues or areas where the judge might have gotten something wrong.

“The facts and details are important, but they’re not the entire focus of an appeal as they were at trial, and it can be hard for people to understand that and let go,” she adds.

If it’s feasible, Daviau likes to have an in-person meeting at the outset of a retainer.

“You want to get a sense of how they view the issues because it might be completely different from your perception or what jumps out from a review of the trial transcripts,” she says. “It can be very helpful to get that perspective because they are the ones who sat through the entire proceedings.”

As long as there are no allegations of ineffective assistance, one of Daviau’s first calls on a case is to another person with intimate knowledge of proceedings — trial counsel.

“They’re usually happy to give you their views on how things went at trial, and sometimes they’re able to flesh out issues that don’t come over in the transcript,” Daviau says.

Occasionally, Daviau will work on the appeal after acting for a client at trial, though she says those cases are the exceptions.

“In general, I think it’s good to get a good fresh set of eyes who can step back and give a bit of perspective,” she says.

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