APPEALS

Mr. Lewandowski has conducted appeals at all levels of court in Ontario. Typically, clients approach the firm upon conviction, or having been given a sentence that is unduly harsh. Often, the family members of the accused suffer undue hardship as a result of their loved one's incarceration. There is hope, however. An accused has the ability to appeal either a conviction or sentence. The appropriate court will depend on whether the originating process transpired in the Ontario Court of Justice, or at the Superior Court level. Not every issue can be appealed. For example, in jury cases, if the jury has made an adverse finding of credibility against a client who testified, there may be no remedy as factual findings of a panel are given heavy deference. In most cases, however, there are legal errors that can be detected throughout the process. With proper review, there almost always an issue that merits a closer look by an appeal panel.

CONVICTION APPEALS

Upon conviction for a criminal offence, an accused has 30 days to file a notice of appeal. This does not mean that the appeal will be argued within that time frame, nor does it mean that all grounds need to be formulated at that time. The notice of appeal merely indicates to the Crown and to the Court that an appeal is being launched. It is quite typical for an offender that is in jail to file an "inmate" notice of appeal - that is, prior to selecting a lawyer of choice. Once a lawyer is retained, the appeal can then be perfected into a "solicitor's" appeal, and the proper process begins.

When appealing a conviction, the appeal can be based on a legal error, or a factual error depending on the circumstances. Typically, a legal error will manifest into a factual error. For example, if a judge erroneously ruled that a piece of evidence was admissible, and then relied on that piece to ground a conviction, then there may be a question of mixed law and fact for an appeal court to consider. In contrast, a purely factual appeal can be insurmountably difficult to mount. Simply arguing that the judge "got it wrong" will not suffice. A factual error must be based on a misapprehension of evidence that goes to the core of the findings made by the judge to produce any result in the appellate court.

From a more practical standpoint, once an appeal begins, the lawyer will obtain the transcripts of proceedings, which are produced by a court certified reporter. This can cause a delay of weeks or months as transcripts are prepared. Once produced, the lawyer will examine them, and determine what the best avenues of attack are, and from there, draft the appeal. Once completed, the appeal becomes "perfected" and is set down for a hearing. Since most of the work has already been produced, most appeals last 40 minutes to an hour. In fact, it has been said that most appeals are won or lost based on the written argument.

Paul Lewandowski has conducted many conviction appeals in the Summary Conviction Appeals Court as well as the Ontario Court of Appeal. With an excellent knowledge of the law, and a keen grasp of factual and logical intricacies of your case, he can typically find a viable avenue of attack on appeal. If you are looking to appeal a wrongful conviction, contact Mr. Lewandowski for a consultation.

SENTENCE APPEALS

In some cases, only the sentence needs to be appeal. The Crown has access to many strong precedents that on their face appear to have general application. As a result, general principles such as "breaches of trust require jail" or "sex offenders go to the penitentiary" tend to be overemphasized by the Crown at the expense of an individualized assessment of the offender standing before the Court. As a result, an unduly harsh sentence can often be reduced on appeal, or overturned entirely.

When a sentence appeal is conducted, depending on the length of the sentence imposed by the trial judge, there is a possibility of applying for bail pending appeal. In those cases, the accused can be released as the process unfolds, recognizing that liberty lost can never be regained.

Paul Lewandowski has successfully assisted many clients with sentence appeals. The question for the appeal court may be the difference from a suspended sentence, where the accused is branded with a criminal record, or a conditional discharge, where the accused has no conviction registered. Or, the question may be the difference of months, even years on a jail sentence. If you are considering appealing a sentence imposed, contact Mr. Lewandowski for a consultation.