Court of Appeal
A person found guilty of a criminal offence has a statutory right to appeal the conviction on a question of law. An appeal on a question of fact requires an application for permission to raise the issue. In addition, the Criminal Code gives the Court of Appeal the power to overturn a guilty verdict if it is found to be unreasonable or unsupported by the evidence.
This latter ground has been restrictively interpreted by the Supreme Court to include a limited power to reassess the evidence, showing deference to the trial court’s finding of fact and credibility, in order to determine whether a reasonable jury, properly instructed in law, could have arrived at a guilty verdict. Thus, the seemingly inequitable result can occur where the higher court finds the evidence weak enough that it would not have convicted the accused but nonetheless the finding of guilt is upheld.
The trial court’s assessment of the credibility of witnesses is also given considerable weight, since in order to overturn a trial judge’s decision to accept the truthfulness of testimony on a given point the judge must be found to have committed a “palpable or overriding error” in assessing the truthfulness of the witness.
In general, the Court of Appeal decides cases on the basis of the evidence adduced at trial but in limited circumstances fresh evidence can be produced before the appeal court. As determined by several relatively recent Supreme Court cases, in order to be permitted fresh evidence must appear credible and bear on a question sufficiently important to affect the outcome of the appeal. One of the best known examples is the subsequent recanting of evidence by important trial witnesses.