Criminal Law

Criminal appeals true test of lawyer's mettle: Dale

By Peter Small, AdvocateDaily.com Contributor

Arguing a criminal appeal is one of the biggest tests a lawyer will face, requiring meticulous preparation and strong advocacy skills, says Toronto criminal lawyer Laurelly Dale.

“It really is the crux of being a true lawyer and that is really where significant case law precedents are set, whether the appeal court affirms or dismisses your assertion,” Dale, principal of Dale Legal Firm, tells AdvocateDaily.com.

“It's as much of a mix of advocacy and academia as you can get.”

Launching an appeal at the Ontario Court of Appeal is a rigidly prescribed process, with exacting formats and timelines, says Dale, who has argued and written factums for multiple appeals.

A defendant found guilty by a judge or jury has 30 days to give notice of appeal of their conviction, sentence, or both. Strict time limits are set for the subsequent stages because they are so document heavy, she says.

The first step is to order transcripts of the proceedings, Dale says.

Typically, the cases under appeal are among the most serious, such as sex assault or murder, and have been subject to lengthy proceedings, including a preliminary hearing, Charter applications, and a trial, she says. “Trying to get all of those transcripts put together takes months.”

In addition, lawyers must file a book of authorities and an appeal book containing all relevant orders, exhibits, and documents. They may want to introduce fresh evidence, which requires a separate application. Finally, both defence and Crown must submit their factum, a written summary of facts, case law and their arguments, Dale says.

Contrary to popular belief, appeal lawyers do not re-litigate the trial, Dale says. Appeal judges stop any lawyers attempting to do so in their tracks, she says. “That's probably the Number 1 rule.”

Instead, appeal lawyers need to demonstrate that the judge who tried the case made “palpable and overriding” errors, Dale says.

For instance, did the trial judge misstate important facts?

“Did the judge just skip over an entire chapter on what self-defence was in their instructions to the jury? Was a weapon admitted in error?” she says. “Was a statement held to be voluntary when there were so many obvious reasons to have it excluded?”

Perhaps the judge failed to warn the jury to be skeptical of the testimony of a “jailhouse snitch” or other unsavoury characters, she says.

Appeal courts give considerable deference to trial judges, so their errors must be obvious to the appellate panel, Dale says.

"Of course, what's obvious depends on what they consider to be obvious from the case law. So you need to find cases that are very similar to yours where the court upheld an appeal on similar grounds,” she says. “You have to very carefully and pragmatically set out in logical order what was the error of law that was committed."

In the case of an American woman who appealed a life sentence for her part in a failed plot to massacre shoppers at a Halifax mall, the Crown argued that the sentence, although at the top end, was fitting, The Canadian Press reports.

The Nova Scotia Court of Appeal agreed, dismissing the U.S. woman's appeal.

In this case, the judge’s sentence, although unusually high, didn’t necessarily meet the threshold of palpable and overriding error, Dale says.

Appearing before an appeal panel — normally comprising three judges — demands a mastery of the file, she says.

Appeal judges, having read the materials, are familiar with each side’s arguments and frequently pause lawyers during submissions to ask questions.

Counsel had better be well-prepared or face the consequences, she says. “You’ll be shredded to pieces if you're not, by not one but three judges.”

Their rulings are often a surprise, Dale says. “Their decision, in the end, might come out completely the opposite of what you thought.”

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