Appeals

Hearing your trial's verdict and your punishment can be a lot to take in. Many people feel overwhelming sorrow, knowing their family life, relationships, friendships, and careers are at great risk. But we are here to tell you this is not necessarily the end.
In most cases seen by the federal court, you can still file an Appeal to the Federal Court of Appeal.

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The Federal Court of Appeal

The role of the Federal Court of Appeal is to ensure that federal law is utilized consistently throughout Canada. It ensures that the federal government and its decision-makers interpret and apply the law fairly, and with proper judgments and sentencing.

The Federal Court of Appeal reviews decisions and claims against the federal government. Also, they review decisions made between private parties, Indigenous law, maritime claims, invention patents, copywriting, and intellectual property rights.

In 2003, the Appeal Division of the Federal Court of Canada went through reform and became designated as the Federal Court of Appeal. It became a court of law, equity, and admiralty and a superior court of record with civil and criminal jurisdiction.

The Jurisdiction of the Federal Court of Appeal

There are three essential requirements for the Federal Court of Appeal to have jurisdiction to review your case.

They need a statutory grant of jurisdiction by the Parliament
It needs to deal with an existing body of federal law that is essential to the case and meets the statutory mandate of jurisdiction
The laws involved in the case must be "a law of Canada," as that is expressed in section 101 of the Constitution Act If any of these stipulations are met, you have the right to be seen by the Federal Court of Appeal.

What Is the Federal Court of Appeal Responsible For

The Federal Court of Appeal is responsible for hearing appeals and applications for judicial review from several courts, tribunals, and administrative decision-makers across Canada. As a general rule, when the Federal Court of Appeal deals with an appeal, it must decide whether the Court that handled the original case committed an error in law, its decision, or made a "palpable and overriding" error in assessing facts about the case.
Most of the judgments of the Federal Court and the Tax Court of Canada are subject to an appeal to the Federal Court of Appeal.

When the Federal Court of Appeal deals with an application for judicial review according to the combined operation of subsection 28(2) and 18.1(4) of the Federal Courts Act, subject to certain exceptions, it may grant relief if it is satisfied that the concerned board, commission, or tribunal:

1
Acted without jurisdiction, acted beyond its authority, or refused to exercise its jurisdiction
2
Failed to observe a principle of natural justice, procedural fairness, or other procedure that it was required by law to follow
3
Erred in law in making a decision or an order, whether or not the error appears on the face of the record
4
Based its decision or order on an erroneous finding of fact that it made perversely or capriciously or without regard for the material before it
5
Acted, or failed to act, because of fraud or perjured evidence
6
Acted in any other way that was contrary to the law

The Federal Court of Appeal has jurisdiction to hear and determine applications for judicial review from the federal boards, commissions, or tribunals listed in subsection 28(1) of the Federal Courts Act.

Basically, the Federal Court of Appeal ensures that the federal government and its representatives act lawfully when making decisions that affect Canadians.

Applying for An Appeal

If you have received a conviction and are seeking an appeal, it is best to speak with a legal team first. Appeals can take anywhere from a few weeks to well over a year and can be costly, ranging from $800-$2000 to start. The process can be exhaustive and stressful, and a good lawyer will keep you apprised of all developments and how to improve your standing for your appeal.

Section 18.1 of the Federal Courts Act states that anyone affected directly by a decision or order from a federal board, commission, or other tribunals can apply for a judicial review from the federal court within 30 days after the decision was first stated to the applicant.
If it is past 30 days, a motion for an extension of time to commence proceeding will need to be made.

Notice of Application for Judicial Review

All applications for judicial review are found in Federal Courts Rules Part 5 (Rules 300-319). Some other rules may be pertinent to your case, and this is why having an appeals lawyer to help you wade through all the paperwork and red tape is to your benefit. You have a time limit, and a certified copy of your Notice of Application for Judicial Review needs to be submitted within 10 days and be a certified copy. You will also need to give the registry two additional copies for processing.

For the Notice of Application for Judicial Review Form 301, you will need to include the following:

1
Names of all the parties involved
2
Date and details of the decision that's to be reviewed
3
Date when the decision was first stated to the applicant
4
Name of the tribunal that made the decision
5
Description of relief requested
6
Ground to be argued and the laws or rules that support it
7
List of all affidavits and documents in support of the application
8
A list of all documents requested from the tribunal if these documents are not in the applicant's possession
9
Signatures, contact details, and the Canadian address of the applicant or the lawyer

Notice of Appearance Form 305

You must then wait up to 10 days to hear from the respondent on whether they will oppose the application for judicial review. If they do not file a notice of appearance, they shall not receive any further documentation concerning the proceedings.

Documents

Suppose you do not have documents that are in possession of the tribunal who made the decision. In that case, you may request these documents in your notice of application, or you can request them separately, and, barring issues, you will receive the documents within 20 days.
All affidavits and supporting paperwork you intend to use during the hearing must be sent to the respondent within 30 days from the time you filed your notice of application. It would be best if you kept all proofs of receipt.
Conversely, the respondent must serve any additional affidavits and supporting material to the applicant and file proof of service to the registry within 30 days after they receive your documents.

Affidavit Cross-Examination

The affidavits served can be cross-examined out of court. The results of the cross-examinations of all parties must be filed within 20 days after completion.

What Comprises the Applicant's Record

Afterward, you must prepare, serve, and file a record with all parties' cross-examinations. Then, you must file three copies of the applicant's record with the registry. Once again, keeping your proof of service would be best.

The record is specific and needs to contain consecutively numbered pages in this particular order:

1
A table of content with the nature and document dates
2
The notice of application
3
The decision to be reviewed and the reasons why
4
Affidavits and documents
5
Transcript of affidavit cross-examinations
6
Tribunal certified materials
7
Transcript of oral evidence before the tribunal
8
A description of physical exhibits used at the hearing
9
A memorandum of fact and laws that are relevant to the case (must not exceed 30 pages)

Having the support of an appellate lawyer will make a lot of difference when going through this process. They know the laws inside and out and can represent your interests and put together and arrange for all the documentation that needs to be filled out, served, reviewed, and presented to the Court of Appeal. From here, it is up to the respondent to file and serve their record within 20 days after you served your record.

Requisition for Hearing Form 314

After all of the above is complete, you must serve and file a requisition for a date for the application hearing. This must happen within ten days from the date of service of the respondent's record. From there, the court will set a hearing date, time, and place. The registry will ensure every party receives this information.

What's Next?

Based on the information provided, the Court of Appeal will either determine that an injustice occurred and may alter your sentencing. Or, they may agree with the original judge or tribunal and keep the sentencing as is. Sometimes, they may reduce or raise your punishment based on their findings. That's why we make every effort at Brett Gladstone Law Corp. to get you acquitted. We are the ones to call when you want an honest assessment of your situation and the possibilities that may occur if the correct steps are taken. Don't go through this alone. Have the backing of one of the best legal teams in Manitoba. Contact us today.

FAQs of DRUGS OFFENCE LAWYER WINNIPEG

How long does an appeal process typically take?

From the moment your application is submitted to the court, the decision will be provided in one to three months.

What happens if the appellate court upholds the original conviction?

If the appellate court upholds the original conviction, you will have to complete your sentencing from the initial trial. Appeals generally only occur if there was a major oversight or issue in your original case.

What is the difference between a direct appeal and a collateral appeal?

Direct appeals are made to the higher courts. They are formal appeals that fall under specific jurisdiction. Direct appeals are a legal right.

Collateral appeals are typically made post-trial in the court that initially tried your case. These motions ask the court to look further into your case for due process or illegal court actions, and are considered a last line of defence when all options have been exhausted.

Can I appeal a sentence even if I pleaded guilty?

Yes, you can. But there is a short window for filing an appeal, and it is best to get the ball rolling as quickly as possible. For the appeal after a guilty plea, you must demonstrate that the plea was not "knowing, voluntary, or intelligent." You can appeal your conviction, sentence, or both.

What are the grounds for appealing a conviction or sentence?

An appeal court could set aside your conviction if the verdict were unreasonable and not evidence-supported. You can also make an appeal if the judge made an error or if there was a miscarriage of justice in any form and on any grounds.

How long do I have to file an appeal?

Your notice of appeal will need to be served within 30 days after the date of the sentencing.

What is the appeals process like?

First, you need to begin your appeal by filing a Notice of Appeal stating why you are appealing and if it is due to a mistake made at your trial. You must serve this notice to your prosecutor's office before filing an appeal to the courts
Next, if there is new information pertaining to your case, such as fresh evidence or testimony, you will have to explain this evidence. Also, you will need to stipulate why this affects your case and why you didn't have it during your trial. Bring this evidence to your appeal hearing.
You also need to pay fines that were a part of your sentencing. This must be done before filing for a Notice of Appeal. It is best to keep these receipts.
Then you need to find the transcripts or videos of what was said in your court hearing. If you do not provide these to the appeal court and prosecutor, your appeal may be dismissed.
Your hearing date will be mailed to you with the date, time, and location of your appeal. You must be prepared to argue for your request to appeal the court's decisions.
At your appeal hearing, you will present your oral statements first, and the prosecutor will then make their arguments.
Appeal decisions can include an appeal against your conviction, an appeal against your sentence, or altering the timing of the appeal decision. The appeal board will weigh all the facts and determine if there has been a miscarriage of justice. If they do vote in your favour, you will receive a notice from the court about a new trial.

Can I appeal a case to the Supreme Court?

Yes, but remember that the Supreme Court of Canada is the final court of appeal. They typically only agree to hear cases vital to policy-making and affecting the population across the country. They also deal with unsettled areas of law.

If the Supreme Court does not agree to hear your case, the Court of Appeal's decision remains on your record. But if they decide to listen to your case, they can reverse or alter the judge's decision, order a new trial or hearing, or agree with the Court of Appeal's sentencing.

Why Choose us?

At Brett Gladstone Law, we pride ourselves on providing exceptional legal representation to our clients. If you are facing DUI charges, we understand that this can be a stressful and overwhelming experience. That's why we offer a number of benefits that make us stand out from other criminal defence firms.

One of the main reasons to choose us is our team of experienced and knowledgeable attorneys. Our lawyers are well-versed in the laws and procedures related to DUI cases and have a track record of success in Winnipeg’s courtroom. We also have a reputation for being aggressive and relentless in our defence of our clients.

Another benefit of choosing us is our personalized approach. We understand that every case is unique and we take the time to get to know our clients and their specific needs. We work closely with you to develop a personalized legal strategy that best serves your interests.

In addition to our legal expertise, we also offer compassionate and understanding support throughout the legal process. We know that facing DUI charges can be emotionally and mentally draining, and we are here to provide the support you need during this difficult time.

You deserve top-notch legal representation and personalized support, so we encourage you to choose Brett Gladstone Law in Winnipeg. Contact us today to learn more about how we can help you achieve a more favourable outcome in court.