Foreword to the First Edition

• Author: Jill R Presser
• Profession: Presser Barristers
• Pages: 17-19

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Foreword to the

First Edition

“It ain’t over til it’s over.”

—Yogi Berra

Appeals of criminal convictions and sentences are a relatively new phenomenon in

the common law world—they are just over a century or so old.1 Appeals are solely

creatures of statute that may not be available in every situation, or that may be avail-

able only with leave.2 And yet, the right to appeal, to “‘push the reset button’ and

have another go,”3 is a cherished one. The Supreme Court of Canada has, perhaps

not surprisingly, recognized the importance of access to review by higher courts:

“[R]ights of appeal are substantive rights of major importance to persons who f‌ind

themselves before the courts and tribunals.”4

It is true that the solidity and f‌inality of a verdict, and the timeliness of disposition,

are essential to the legitimacy of the criminal trial process. These values militate

against the wide availability of criminal appeals.5

But to the criminal appellant, the right to appeal feels fundamental. To a society

concerned with doing justice, meaningful appeals are essential. The prevention of

wrongful convictions is accomplished through the appellate courts’ error-correcting

function. Appeals are bulwarks against unfairness, miscarriages of justice, violations

of constitutional rights, and conviction of the innocent.6 The values of f‌inality and

1 Peter McCormick, “Try, Try Again: Appeals from the Manitoba Court of Appeal to the Su-

preme Court of Canada 2000-2004” (2007) 32:1 Man LJ 79 at 80.

2 Dagenais v Canadian Broadcasting Corp, [1994] 3 SCR 835, 1994 CanLII 39; Mills vR, [198 6] 1

SCR 863, 1986 CanLII 17; Kourtessis v Canada (Minister of National Revenue), [1993] 2 SCR53,

1993 CanLII 137.

3 Supra note 1.

4 HL v Canada (Attorney General), [2005] 1 SCR 401 at para 199, 2005 SCC 25.

5 R v RR, 2008 ONCA 497 at para 16.

6 Bruce A MacFarlane, QC, “Wrongful Convictions: Determining Culpability When the Sand

Keeps Shifting” (2014) 47:2 UBC LRev 597.

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