The Appeal Process

If you’ve been convicted of a criminal offence and disagree with the result, you can ask a higher level of court to review your conviction and/or sentence. This is known as appealing your conviction or sentence or both. It is important to note that the Crown is also entitled to initiate an appeal if they disagree with the verdict (i.e. if you were found not guilty), believe the judge or jury below made a legal error, or if they disagree with the sentence imposed.

The appellate process can be daunting and complex - each appeal is unique, raising its own issues specific to the trial/hearing/sentence below. The information below is to provide a general overview of the process in Ontario.

If you are considering appealing your conviction and/or sentence, you can reach out to Sara Little at slittle@btlegal.ca or 416-557-2063 to schedule a free initial consultation to discuss your potential appeal.

when to file your appeal

An appeal is started by filing a “Notice of Appeal” with the relevant court (see below for which court to file your appeal with). In Ontario, you must file your Notice of Appeal within 30 days of the date of your sentence.

Given the relatively short timeframe to commence an appeal, it is important to consult a lawyer shortly after the date of your conviction and/or sentence to discuss the possibility of appealing. If you miss the deadline to file an appeal, you can apply to the court for an extension of time to file your notice of appeal. Whether or not the court grants the extension depends on a variety of factors such as whether you formed the intention to appeal within the 30 day period, whether the Crown would be prejudiced by the delay, the merits of the proposed appeal and generally whether it is in the “interests of justice” to grant the extension.

where to file your appeal

Summary Conviction Appeals

If you are convicted of a summary conviction offence, your appeal will generally be heard at the Ontario Superior Court of Justice by a single judge. The losing party in a summary conviction appeal then has the option to pursue a further appeal to the Court of Appeal for Ontario with permission of the court.

Indictable Appeals

If you are convicted of an indictable offence, your appeal will be heard at the Court of Appeal for Ontario generally by a panel of three judges. In rare cases, an appeal at the court of appeal may be heard by a panel of five judges.

Supreme Court of Canada Appeals

The Supreme Court of Canada is the highest level of court in Canada. It is the final court of appeal for criminal cases. The Supreme Court hears appeals from decisions rendered by the provincial/territorial appellate courts (in Ontario, the Court of Appeal for Ontario). In the vast majority of cases, you need to get permission from the court (known as getting “leave” from the court) for the Supreme Court to hear your appeal. Leave is granted in less than 10% of cases. The main exceptions to this leave requirement are (1) where a judge of the Court of Appeal for Ontario dissents below, or (2) your acquittal has been set aside and the court of appeal substituted a conviction.

how to “perfect” your appeal

Once your Notice of Appeal is filed, you must “perfect” your appeal with the court. Perfecting an appeal refers to filing all the relevant materials necessary for the appeal. In Ontario, perfecting an appeal requires the appellant to serve and file the following with the court:

  1. Transcripts from the trial, hearing and/or sentence below;

  2. The appeal book; and

  3. The appellant’s factum.

Once these materials are filed, a hearing date can be set.

The appeal book refers to key court documents (such as the Information or Indictment, reasons below, etc.) and trial exhibits bound together in one book. The factum refers to the issues on appeal and written argument you (or your lawyer) plan to advance on appeal.

Types of issues or grounds of appeal

First and foremost, it is important to understand that an appeal is NOT a second trial. Instead, it is an opportunity for you or your lawyer to ask a higher level of court to correct ERRORS made by the judge or jury below. This includes errors of law, errors of fact or errors of mixed fact and law.

It would be impossible to provide a comprehensive or exhaustive list of potential grounds or issues that can be raised on appeal. That being said, there are some common or frequently raised grounds of appeal such as:

  • Unreasonable verdict;

  • Inconsistent verdicts;

  • Misapprehensions of evidence;

  • Insufficient reasons;

  • Improperly instructing the jury on principles of law;

  • Failure to provide required special instructions to the jury;

  • Admission of evidence that ought to be excluded;

  • Incompetence of counsel.

  • Etc.

Disclaimer: Please note that this article is not legal advice. It is simply intended to be a simplified explanations of the criminal process in Ontario. There may be differences, however, in different jurisdictions or courthouses within Ontario based on their own rules, regulation or common practices. If you’ve been charged with a criminal offence or are anticipating potential charges, don’t hesitate to reach out to a lawyer for a consultation to discuss the particulars or details of your case.