Criminal Law

Many facets to weigh when considering an appeal: Zita

By Peter Small, Contributor

A lawyer should carefully consider multiple factors when determining whether to appeal a conviction and never hesitate to recommend that course if it’s in the client’s best interests, says Toronto criminal lawyer Jessica Zita.

“There are never any guarantees,” says Zita, an associate with Hicks Adams LLP. “But if there’s something to work with, and your client wants to go ahead with it, you owe it to them to argue it.”

The first step in determining whether to appeal is to read the trial transcripts, she says. “You want to look at the markers and the milestones in the trial.”

Appeal lawyers examine the judge’s rulings, and potential jury charge.

“That's where you'll find if there were errors of law, or if the verdict was unreasonable,” Zita tells

Besides an unreasonable verdict — one that doesn’t fit the facts — you can also see whether it was inconsistent, which can occur when the accused faces multiple charges, she says.

“If the trial finds the accused guilty of one of those counts, but not the others, often that can be inconsistent because logic would say if they're not guilty of this, they should also be not guilty of that,” Zita says.

Appeal courts treat jury verdicts with great deference, but they can and do question the information jurors were given before reaching those verdicts, she says.

Fertile ground for appeal can often be found in discussions surrounding the jury charge, Zita says.

It is always easier to raise an issue on appeal if the defence objected to it at trial, and the judge was in a position to make a ruling, and did not, she says.

“So that's where objections are very important because the Court of Appeal doesn't like to question trial counsel's strategies,” Zita says. “But if trial counsel was alive to the potential of this error, and it was put in the judge's hands to make a decision, that is something that can be reviewed.”

Appeal lawyers can also look at evidentiary issues, she says. Did the Crown and defence argue about what evidence should be included or excluded? How did the judge rule on these questions?

The misapprehension of important facts by the trial judge can be another ground for appeal, she says. “Maybe they restated a key point of evidence incorrectly.”

Appeal judges view some arguments more favourably than others, Zita says.

“For example, appealing a credibility finding of a trial judge is never something the Court of Appeal likes because the idea is the trial judge saw the person testify, and knows that witness better than anyone else.”

Ineffective assistance by trial defence counsel is another possible ground.

“However, those are not popular arguments to make,” she says. “I think everyone in the room is uncomfortable with them. But if your client comes to you and says, ‘No, there are grounds for it,’ I think it would be ineffective to not argue it.”

Fresh evidence may have come to your attention, but the bar for admission is high, Zita says.

Under a test set out in 1979 by the Supreme Court of Canada, any new evidence a lawyer wishes to introduce must be admissible under the rules, and must be sufficiently cogent to be reasonably expected to have affected the verdict, she says.

In addition, the court must look at the explanation offered for the failure to produce this evidence at trial, and examine how that explanation affects its admissibility on appeal.

The court does not take kindly to appellate lawyers using fresh evidence applications to challenge the tactics employed by trial defence counsel, Zita says. You can’t be seen as trying to relitigate the trial.

There are other important considerations when a lawyer sits down with a client to discuss whether to appeal, she says, adding that appeals are costly, lengthy, and the outcomes are uncertain.

More often than not, the appropriate path to seek is a retrial rather than an outright acquittal, Zita says. “And that's dangerous for some people because when you ask for a retrial, you're putting yourself back in the hands of the state.”

Despite the risks, some clients want to proceed. If there is any chance of success, and the defendant is willing, it should be attempted, she says.

An appeal can give you a bird’s-eye view of the entire trial, Zita says.

“Everything’s clearer in hindsight. So you’re really able to understand the case, get a look at what happened, maybe get a sense of closure, and ask questions that you won’t have another opportunity to ask.”

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