Experienced Criminal Appeal Lawyers

How to Appeal a Criminal Conviction in Ontario

Being convicted of a criminal offence can be a life-changing event, but it’s important to remember that there are legal avenues available to challenge the decision. If you believe an error occurred during your trial, you have the right to appeal your conviction. Here’s a short but comprehensive guide to help you understand the appeal process, important considerations, and what to expect.

1. How to Appeal a Criminal Conviction

Automatic Right to Appeal: In Canada, everyone convicted of an offence has an automatic right to appeal. This means you can challenge the verdict or the sentence imposed by the trial court. This does not guarantee success, only a right to challenge the court’s verdict or sentence.

Filing a Notice of Appeal: To start the appeal process, you must file a Notice of Appeal within 30 days of the sentencing. Missing this deadline can jeopardize your ability to appeal, so it’s crucial to act promptly.

2. Important Considerations for an Appeal

Time Limitations: As mentioned, you must file your Notice of Appeal within 30 days of your sentencing. This time limit is strict, and failing to meet it can result in losing your right to appeal.

Costs Involved: Appeals can be lengthy and costly. They often take years to conclude, and the expenses can be significant. Disbursement fees, such as those for trial transcripts, may become a major obstacle for clients who cannot afford them. Legal Aid may cover these costs for eligible clients, but this requires an opinion letter justifying the appeal.

Impact on Parole Eligibility: If you are serving a federal sentence, appealing your conviction might impact your eligibility for parole. Participation in institutional programs, which are crucial for parole, often centres around guilt and accountability. An ongoing appeal might prevent you from engaging in these programs.

A New Trial: Even if a person succeeds on appeal, a new trial is typically ordered, meaning the same facts and legal issues may be repeated. Often, people do not take into account that “winning” on appeal means starting over, with all the associated costs, delays, and stress.

Delay: Appeals can take many months, often years, to resolve. For many people convicted of a criminal offence, moving on with their lives is a priority. While appeals may be necessary, they can prolong the process and delay the ability to put this chapter behind them.

3. The Format and Process of a Criminal Appeal

Preparing the Record of Appeal: When appealing, you must submit a record of appeal that meets specific requirements. This includes the Notice of Appeal, bail pending appeal materials, certified copies of the Information/Indictment, Facta of the Applicant and Respondent, and certified copies of the transcripts.

Hearing the Appeal: In Ontario, there are two courts that hear criminal appeals:

• Ontario Court of Appeal: Handles more serious “indictable” cases.
• Ontario Superior Court of Justice: Handles less serious “summary conviction” cases.

Possible Outcomes: After hearing an appeal, the court can:

1. Dismiss the appeal.
2. Order a new trial.
3. Change the verdict from acquittal to guilt or vice versa.
4. Alter the sentence.

4. Grounds for an Appeal

Errors of Law: Common legal grounds for an appeal include:

• Inadequate reasons provided by the judge for the conviction.
• Reasonable suspicion of bias by the trial judge.
• Misapplication of the presumption of innocence or other fundamental legal errors.
• Admission of evidence that should have been excluded.
• Improper jury instructions on legal principles.
• Unfair treatment against the principles of natural justice.

Errors of Fact or Mixed Fact and Law: These may include:

• Misunderstanding or unreasonable findings of fact by the trial judge.
• Unreasonable conclusions drawn from the evidence.
• Ineffective assistance of counsel.
• Inconsistent or contradictory verdicts.

5. Bail Pending Appeal

Requesting Bail: While waiting for an appeal to be heard, you can apply for bail to suspend any incarceration, fines, or prohibition orders. This means you can request to be released on bail or to stay a court order that prohibits you from driving or paying a fine while your appeal is pending. More information on bail pending appeal can be found here. 

Key Considerations on Appeal

Assessing the Merits of an Appeal: The most crucial part of the appellate process is identifying an error that could have affected the trial’s outcome. This requires thorough review and analysis of the trial’s major rulings, jury charges, or the judge’s reasons for judgment.

Potential Risks: Clients should be aware that appeals are significant undertakings with no guaranteed outcomes. The appeal process is often lengthy, with long periods of inactivity, and even with a strong error, winning an appeal is a formidable challenge. Additionally, the best possible outcome in many appeals might be an order for a new trial, which carries the risk of being convicted again.

Alternative Options: In some cases, focusing on parole rather than appealing might be a better strategy, particularly if reducing jail time is the client’s primary concern. Parole offers a cost-effective and quicker resolution compared to the lengthy and uncertain appeal process.

Conclusion

Appealing a criminal conviction is a complex process that requires careful consideration of various factors, including time limitations, costs, potential risks, and the impact on parole eligibility. By understanding the process and working with an experienced criminal appeal lawyer, you can navigate this challenging legal terrain and make informed decisions about your case.

For further guidance and assistance, it’s essential to consult with a criminal appeal lawyer to ensure you are fully informed and well-prepared for the journey ahead.

The Ontario Superior Court of Justice
The Ontario Court of Appeal
The Supreme Court of Canada
Ministry of the Attorney General of Ontario
CanLII (Legal Database)
Eugene Meehan, Q.C., SupremeAdvocacyLett@rs
Recent Ontario Court of Appeal of Ontario Decisions