Criminal Law

Appeals more complex than clients realize: Daviau

By Staff

Preparation and care are more important than speed in filing appeals — something clients don’t often understand, says Toronto criminal lawyer Lindsay Daviau.

Daviau, who also practises constitutional and administrative law with Rosen & Company Barristers, says criminal appeals are often complex and turn on fine points of law, requiring meticulous preparation and documentation.

“It’s often hard to explain to a client that we can’t just rush their appeal to the court,” says Daviau, whose practice involves many appeal cases. “They’re frustrated, especially if they’re incarcerated during the appeal process because bail isn’t always an option for them.”

The key to appeals is to prepare well and that takes time, she tells

“There’s a great amount of research into law and previous cases which has to be done,” says Daviau, who acted as an intervener for the Criminal Lawyers Association and Canadian Civil Liberties Association in seven cases before the Supreme Court of Canada prior to joining Rosen & Company.

“And it takes time to write the appeal. You want to make sure your materials are well prepared because you’re presenting to a panel of three judges, all of whom are vastly experienced and will have no qualms in pouncing on you if your work is sloppy or you make mistakes.”

Frequently, clients also want to present new evidence to the appeal court, she says, and that isn’t always possible.

“Certainly, if new evidence comes to light it can be presented but there’s an entire process to facilitate that,” Daviau says. “You’re not going to the Court of Appeal to retry the case. You have to accept the evidence as tabled.

"What you need to do is show there was an error in law or a missed point, which was crucial and should have been given more weight in the decision.”

Because of the hours involved, appeals are expensive, Daviau says, and clients don’t always realize that they involve so much work.

Many hours are spent just reading case law and preparing the documents that have to be provided in sets of three copies for the court, she says.

“Then there’s the time factor where you make your arguments, answer the questions from the judges, because you want your argument to be compelling, and address the legal issues,” says Daviau. “It can take weeks or months for them to bring back their decision. If it happens too quickly, that’s usually not a good thing.

"In the meantime, of course, if the client is in jail they will stay in jail because they have no right to attend their appeal.”

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