What happens at a criminal appeal?

By Last Updated: March 16, 2022

An appeal is not a new trial where you are allowed to present your defence a second time with the hope of obtaining a different result. Rather, an appeal allows you to go before a higher court to argue that on the basis of the transcript and the evidence tendered at your first trial, that it is evident the trial judge made a legal error or a decision that was unreasonable. You may argue, for example, that the judge interpreted or applied the law incorrectly, and that, as a result, they arrived at the “wrong” decision.

If you are appealing your sentence alone, you may argue that the sentence you received is unfit because the judge applied the law incorrectly, or that your sentence is disproportionately harsh relative to the offence you were found guilty of committing.

If, after your conviction, you discover evidence that is relevant to your guilt or innocence that was not put before the court at your first trial, you may be able to use that evidence as the basis for your appeal. However, it is not always easy to introduce evidence to appeal your decision. If you want to introduce new evidence the court will have to consider a number of factors, specifically:

  • Is the evidence credible and believable?
  • Is it relevant to issues at trial?
  • If it were added to the other evidence presented at trial, could it reasonably be expected to affect the decision?
  • Could it have been admitted in trial if the defence had been diligent?

If the fresh evidence is accepted by the appeal court, a new trial will be ordered and you will no longer be convicted but charged of the offence until you are either found guilty or acquitted in the new trial.

Possible Outcomes of a Criminal Appeal:


The best possible outcome for an appeal is an acquittal, or a finding that a conviction cannot be supported on the basis of the evidence that was presented at trial.

A new trial is ordered:

A new trial will be ordered where the reviewing court finds that the first trial was not conducted properly. For example, this can be because the trial judge made a mistake when interpreting and applying the law to your case, or when there is reason to believe that the judge was biased. If a new trial is ordered, you case will be sent back and retried.  If a new trial is ordered, your conviction for the alleged offence will also be vacated, but you will remain charged with the offence until a verdict is reached in the new trial.

An acquittal is substituted for a finding of guilt:

The reviewing court can also decide that after considering the evidence that was presented in your trial, that is is clear that the trial judge made a mistake by acquitting you. The appeal court will then vacate your acquittal and declare that you were found guilty of the crime. However, this happens very rarely and if it does, you are automatically granted leave to appeal to the Supreme Court of Canada.

The sentenced is varied:

If you appealed your sentence, you may receive a new sentence that is more or less severe, or you can have certain aspects of your sentence changed. For example, ancillary orders that accompanied the initial sentence like a DNA order or a firearms prohibition may be removed, or the time that you are served in prison can be increased, decreased, or completely eliminated.

The appeal is dismissed:

Your appeal will be dismissed when the appeal court finds that the trial judge’s decision was reasonable in light of the evidence and the arguments that were presented at trial. In such an event, the trial judge’s decision and sentence will be restored.

About The Author

Michael Oykhman

Managing Partner

Michael Oykhman is a senior lawyer and founder of Strategic Criminal Defence, a full-service criminal law firm with central law offices across Western Canada and Ontario.

My professional experience consists of countless court appearances and thousands of successful defences and satisfied clients. Over the last 10 years, I have worked to build a law office where all the lawyers share our collective experience, resources, and passion to help people. Our team approach to legal representation is client–rather than only law–centred. We look for opportunities to add value to our clients through strategic thinking and creative solutions.

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