Conducting a Criminal Appeal in Ontario

If a person is convicted at a criminal trial in Ontario, that person may ask an appeal court to review the decision and/or verdict made by the judge or jury.   The Crown Attorney may also seek to appeal those decisions.   The nature of a criminal appeal typically challenges the verdict, the sentence upon conviction, or both.

Criminal Appeal LawyerThe information set out below is written as generalities and in no way exhaustive of the steps and expertise required to succeed on an appeal.  Every appeal has its own subtleties and rules that make the process very difficult to navigate without experienced appellate counsel.

None of the information below should be relied upon in determining grounds of appeal, time limitations, strategies, or processes and is simply intended as general information in order to better understand the issues when speaking to a lawyer to assist with the appeal.

You may reach one of our lawyers directly, and at no charge for an initial consultation at (416) 999-8389.

You may also wish to visit the website of the Ontario Court of Appeal or the Superior Court of Justice for up to date information on steps, rules, processes and time lines.The information set out below is written as generalities and in no way exhaustive of the steps and expertise required to succeed on an appeal.  Every appeal has its own subtleties and rules that make the process very difficult to navigate without experienced appellate counsel.

The basic elements of a criminal appeal in Ontario:

Time limitations are very important to appealing a decision. The general rule is that a Notice of Appeal must be filed within 30 days of the conviction and/or sentence.
As noted above, criminal appeals typically appeal the conviction, sentence, or both. This means that a person convicted of a sentence may ask the appeal court to review that verdict of guilt and/or the sentence imposed upon the offender.

If the person is appealing the conviction or verdict, the appeal court may assess a number of grounds that may be raised; however, they will almost exclusively limit themselves to the issues raised on appeal. It is therefore fundamentally important that in filing the appeal, the issues, which have the most merit, are set out clearly. Any issues that are not clearly set out are presumptively not being heard on appeal unless the contrary is shown.

An experienced appellate lawyer is very important in assisting what the appeal issues are and the merits to each of the grounds. Grounds of appeal are typically dealt with in one of two ways: 1) questions of law, or 2) questions of fact

a) Insufficient reasons provided by the judge upon conviction;

b) A reasonable apprehension of bias of the trial judge;

c) Misapplication of the presumption of innocence, misapplication of proper procedures, or other fundamental errors of law;

d) An admission of evidence that ought to be have been excluded;

e) Improperly instructing the jury on principles of law;

f) Acting unfairly and against principles of natural justice to either party (such as not allowing one side to fully examine the evidence, present their case, or make fulsome submissions);

g) Etc.

a) A clear misapprehension or unreasonable findings of fact at trial;
b) Unreasonable conclusions drawn from the evidence at trial;
c) Incompetence of counsel;
d) Inconsistent verdicts;
e) Etc.
In the course of appealing the conviction and/or sentence, it may be preferable to seek a Order that effectively suspends the incarceration, fines, or prohibition orders. In particular, if one was sentenced to a period of incarceration, that person may apply to the appeal Court to be released on bail pending the determination of the appeal. Similarly, that person may also want to suspend, or seek a “stay”, of an Court Order that prohibits one from driving or paying a fine.
The appellate courts of all levels are very reluctant to accept fresh evidence or new issues raised for the first time on appeal. For example, if a constitutional motions seeking relief under the Charter of Rights and Freedoms is not raised at trial, it is exceptionally difficult to attempt to litigate the issue on appeal.

Similarly, if evidence is not presented at trial when the offender or counsel on behalf of the offender acting diligently could have done so, the appeal courts are hesitant to then allow fresh evidence. There are exceptions to these rules but they are rarely applied.

In short, appellate counsel is almost invariably “stuck with the evidentiary record” from trial.

In the Ontario Courts, there are two forums for criminal appeals to be heard. For more serious matters of an “indictable” nature, the Ontario Court of Appeal hears those decisions. For less serious, or “summary conviction” matters, the Ontario Superior Court of Justice is the proper forum.

The Superior Court of Justice is located within its respective jurisdiction and city. For example, the Superior Court of Justice of Toronto is located at 361 University Avenue, in Newmarket it is located at 50 Eagle Street West, and so on.

The Ontario Court of Appeal is located at Osgoode Hall, 130 Queen St. West, Toronto.

The appeal process is almost entirely paper based. Therefore, filing a complete and proper record of appeal is essential. There are very specific requirements of both form and substance for all of these materials. Materials typically include, but are not limited to:

· The Notice of Appeal
· Bail pending appeal materials (judge’s order, affidavits, etc.)
· Certified Copies of the Information/Indictment
· The Facta of the Applicant and Repondpent
· Certified copies of the transcripts

In addition to a complete record of appeal, the Applicant is required to abide to strict rules on serving all relevant documents on the opposing side. An experienced appellate lawyer can assist in ensuring that all of those requirements are met depending on the circumstances.

An appeal hearing is very different that what was experienced at trial. Since appeals are based upon the evidence heard and decisions made at trial in almost every instance, the hearing is focused on the submissions of counsel and questions raised by the Appellate Judge or Judges.

The accused is not present in most appeals and in some appeals, is not entitled to be unless leave is granted to do so.

An appeal court may do a number of things after hearing an appeal.

Those powers include:

1) Dismissing an appeal;

2) Order a new trial;

3) Change the verdict of acquittal or guilt to the opposite; and,

4) Vary the sentence imposed;

As can be observed above, the processes involved for appealing one’s conviction or sentence can be very complicated in procedure and law. It is strongly advised any person seeking to appeal seek the immediate assistance of experienced counsel who can assist and ensure that all requirements are fulfilled as well as argue a persuasive appeal with the best chance of success.

You can reach one of our criminal lawyers by calling (416) 999-8389 for an immediate initial consultation.

Helpful links for criminal appeals in Ontario:

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

Recent articles on the law and appeals