Which Court, and What It Decides.
Where an appeal from a conviction or a sentence is heard, the grounds on which it can succeed, and what the court can order.
Which Court Hears the Appeal
The court that hears the appeal depends on how the case was prosecuted. Less serious offences are prosecuted by summary conviction in the Ontario Court of Justice, and more serious ones by indictment. Many offences can be prosecuted either way, and the choice the Crown made at the start of the case decides the route of the appeal.
An appeal from a summary conviction goes to a judge of the Superior Court of Justice in the region where the case was decided. Under the Criminal CodeR.S.C. 1985, c. C-46, ss. 812(1)(a) and 813(a)., the person convicted may appeal from the conviction, from the sentence, or from both.
An appeal in a case prosecuted by indictment goes to the Court of Appeal for Ontario. The Criminal CodeR.S.C. 1985, c. C-46, s. 675(1). gives a right of appeal against the conviction on a question of law. An appeal on a question of fact, or of mixed fact and law, needs leave, and so does an appeal against the sentence, unless the sentence is one fixed by law. The request for leave is made in the notice of appeal.
The Grounds of Appeal
An appeal is not a second trial. The appeal court decides the case on the record, which is made up of the transcripts, the exhibits and the judge's reasons, and it does not hear the witnesses again.
The Criminal CodeR.S.C. 1985, c. C-46, s. 686(1)(a). The same grounds apply to a summary conviction appeal through s. 822(1). allows an appeal from conviction on three (3) grounds; namely, (i) that the verdict is unreasonable or cannot be supported by the evidence; (ii) that the judge made a wrong decision on a question of law; or (iii) that there was a miscarriage of justice.
An error of law does not always lead to a new trial. The court may dismiss the appeal where it is of the opinion that the error caused no substantial wrong or miscarriage of justice.R.S.C. 1985, c. C-46, s. 686(1)(b)(iii). The grounds therefore have to be chosen with the whole record in view, and an opinion on the merits looks at what the error is likely to have changed.
What the Court Can Order
Where an appeal from conviction is allowed, the court sets the conviction aside and either enters an acquittal or orders a new trial.R.S.C. 1985, c. C-46, s. 686(2). Which of the two (2) it orders depends on the ground that succeeded.
Sentence Appeals
A sentence can be appealed on its own or together with the conviction. The court considers whether the sentence is fit, and it may vary the sentence within the limits the law allows or dismiss the appeal.R.S.C. 1985, c. C-46, s. 687. A varied sentence has the same effect as a sentence passed by the trial court.
A sentence appeal needs a clear account of what the sentencing judge did and why it was wrong, set against the sentences imposed in comparable cases. A sentence that is higher than the appellant hoped for is not, for that reason alone, an unfit one.
Time and Custody.
The time to appeal, what happens if it is missed, and whether a person in custody can be released until the appeal is decided.
The Thirty Days
The notice of appeal must be filed within thirty (30) days after the day on which the sentence is imposed, whether the appeal is from the conviction, the sentence or both.Criminal Appeal Rules of the Court of Appeal for Ontario (in force November 1, 2021), r. 8(3). The same thirty (30) days apply to a summary conviction appeal to the Superior Court of Justice. The time runs from the sentence and not from the finding of guilt.
A judge may extend the time.Criminal Code, s. 678(2); Criminal Appeal Rules, r. 9(3). An extension is not automatic, and the request has to account for the delay and show that the appeal has merit. Where the thirty (30) days are close to running out, the notice of appeal is filed first and the grounds are refined after the transcripts arrive.
The transcripts of the trial are ordered when the notice of appeal is filed, and the appellant pays for them. The appeal cannot be argued without them, and their cost is quoted separately from the fee.
Release Pending Appeal
Filing an appeal does not release a person who is serving a sentence. A judge of the appeal court may order release until the appeal is decided. On an appeal from conviction to the Court of Appeal, the Criminal CodeR.S.C. 1985, c. C-46, s. 679(3). requires the appellant to show three (3) things; namely, that the appeal is not frivolous, that the appellant will surrender into custody when required, and that detention is not necessary in the public interest.
Release is harder to obtain on an appeal against the sentence alone, where leave to appeal has to be granted first and the appellant has to show that the appeal has enough merit that detention would cause unnecessary hardship.R.S.C. 1985, c. C-46, s. 679(1)(b) and (4). On a summary conviction appeal, release is ordered by a judge of the Superior Court of Justice.R.S.C. 1985, c. C-46, s. 816(1).
Fresh Evidence
An appeal court may receive evidence that was not before the trial court where it considers that the interests of justice require it.R.S.C. 1985, c. C-46, s. 683(1)(d). The power is used sparingly. Evidence that could have been called at trial with reasonable diligence is seldom admitted, and the application has to show what the evidence is and how it could have affected the result.
Further Appeals
The decision of the Superior Court of Justice on a summary conviction appeal can be appealed to the Court of Appeal for Ontario only with that court's leave, and only on a question of law.R.S.C. 1985, c. C-46, s. 839(1). The appeal to the Superior Court is therefore prepared as the one that will decide the matter.
The Appeal in Practice.
How an appeal is prepared, how the firm works with the lawyer who acted at trial, and what the appeal costs.
How the Appeal Is Prepared
The work begins with the reasons for judgment and the trial file, and then the transcripts. The grounds are settled once the record has been read as a whole, and the weaker ones are left out so that the court's attention goes to the grounds that can succeed.
The factum states each ground, the passages of the record that support it and the order that is asked for. Oral argument is short, and it is prepared on the footing that the judges have read the factum.
Working With Trial Counsel
The firm does not act at criminal trials. The lawyer who acted at trial knows the file, and we ask for it at the start and keep that lawyer informed.
Some trial lawyers prefer to argue the appeal themselves. For them the firm writes the factum on a fixed fee, from the record and the lawyer's instructions, and the lawyer signs and argues it.
A Civil Claim About the Same Events
A conviction is often followed by a civil lawsuit about the same events. Under Ontario's Evidence ActR.S.O. 1990, c. E.23, s. 22.1., the conviction is proof of the offence in the civil case only once the time to appeal has passed or the appeal is over, so a pending appeal changes the timing of the civil case and what the plaintiff can rely on. The firm acts in those cases as well, and its page on civil claims after criminal charges explains how the two (2) cases fit together.
Fixed Fees
A criminal appeal is taken on a fixed fee. The fee for each stage is quoted in writing before the stage begins, it includes the hearing, and it does not change with the hours the work takes. Transcripts and other disbursements are charged at cost, and HST is added.
The quote assumes a trial and a transcript of a stated length, and a longer record is quoted before the retainer is signed. Where an opinion on the merits or a notice of appeal is retained first, its fee is credited against the fee for the appeal if the appeal goes ahead. The page on how our fixed fees work explains the arrangement in general.