The judge has just said “guilty,” and your first thought may be that the judge got it wrong. That feeling is completely understandable, and it may even be correct. But being sure that the judge got it wrong is not by itself a route to changing the result. Appeal courts do not simply rehear the witnesses and take a second look. They ask narrower questions, about legal error, unreasonable verdicts and fairness, and they usually have only the transcript and exhibits in front of them.
Timing is the first and most urgent point. In Ontario, the deadline for starting a criminal appeal is generally 30 days, and that time can disappear quickly when someone is adjusting to a sentence. If you read nothing else here, note that date on the day you are sentenced.
The information below is general and is not legal advice. Your own appeal rights and deadlines depend on how you were prosecuted and in which court, and you should get advice specific to your file quickly.
Which Court Hears It
The Brampton courthouse may be where your trial happened, but your appeal could end up in another building. The route depends on how the Crown proceeded.
Summary conviction matters. Under section 813 of the Criminal Code, an appeal goes to the Superior Court of Justice. In Peel, that court sits at the same address as the trial court, 7755 Hurontario Street, although the judge will be different. These are often called summary conviction appeals.
Indictable matters. Under section 675, an appeal goes to the Court of Appeal for Ontario, which sits at Osgoode Hall on Queen Street West in Toronto. This is true whether your trial was in the Ontario Court of Justice or the Superior Court, and whether it was before a judge alone or with a jury.
Check your paperwork, or the record of the proceedings, if you do not know how the Crown proceeded. If you were in a hybrid case, the election may not be obvious, and it decides your route. A further appeal from a summary conviction appeal to the Court of Appeal needs leave, under section 839, and must involve a question of law alone. Later appeal to the Supreme Court of Canada is possible but is normally only available with leave, or on a question of law on which a Court of Appeal judge dissented.
The Deadline
For appeals to the Court of Appeal, the Criminal Appeal Rules say that the notice of appeal must be filed within 30 days after the day on which the sentence is imposed. Summary conviction appeals in the Superior Court also generally have a 30-day period under that court’s Criminal Proceedings Rules.
Those are short periods, for a few reasons. Trial lawyers do not automatically handle appeals, and their retainer usually ends at sentence. Legal Aid applications take time. If you are in custody, you may be moved between institutions in the first few weeks.
If you are in custody and do not have counsel, the Court of Appeal has an inmate appeal process that lets you start by giving a notice to the institution’s senior official. That notice is treated as served and filed on the date it is delivered to that official. Ask about it right away.
If you miss the date, it is not necessarily the end. Section 678(2) permits the court to extend time. A judge will generally look at whether you formed an intention to appeal within the time, how you explain the delay, the merits, and the interests of justice. An extension is more likely when requested promptly, and asking for one is far from automatic. Do not rely on it.
The Grounds That Can Succeed
Section 686(1)(a) sets out three broad bases on which the Court of Appeal may allow a conviction appeal, and summary conviction appeals use the same framework through section 822:
An unreasonable verdict. The verdict cannot be supported by the evidence, because no properly instructed jury or judge acting judicially could reasonably have reached it. This is a difficult standard to meet. Disagreement with how a judge viewed witnesses is rarely enough, because appeal courts give heavy deference to trial judges on credibility.
An error of law. Examples include a wrong legal test, an improper ruling on whether evidence was admissible, a wrong direction to a jury, or misapplying the burden of proof. A trial judge’s mistaken understanding of how a section works may also qualify. Errors on Charter rulings often come under this heading, too.
A miscarriage of justice. This is a broader category for unfair trials. It can include serious misapprehensions of evidence that played an essential role in the verdict, conduct by a judge that created an appearance of unfairness, or ineffective assistance by your trial lawyer. Claims about your former lawyer’s work have a specific procedure, and they require showing both that their work fell below a reasonable standard and that a miscarriage of justice resulted. Such claims often need affidavits, and they involve a waiver of solicitor-client privilege on the relevant matters.
Even when an error is found, the appeal may still fail. Under section 686(1)(b)(iii), known as the “curative proviso,” the court may dismiss the appeal if no substantial wrong or miscarriage of justice occurred, such as where the error was harmless or where the case against the accused was overwhelming.
Whether you need leave depends on the ground. On indictable appeals, a pure question of law may be raised as of right. Questions of fact or mixed fact and law generally require leave of the Court of Appeal or a judge, or a certificate from the trial judge.
A few things almost never work on their own:
- “The judge believed the other side.” Credibility is the trial judge’s job.
- “My lawyer should have made a better argument,” with no real failing and no effect on the result.
- “New evidence I thought of later,” if it could have been presented at trial.
- “I have a better defence now.” Appellate courts generally do not let a person run a different defence than the one raised at trial, with limited exceptions.
- An appeal to sympathy. Hardship from a conviction is not itself an error, though it may matter for a sentence.
Fresh Evidence
Although appeals are normally based on the existing record, section 683 allows a court to receive new evidence where it is in the interests of justice. The test comes from Palmer v. The Queen, a Supreme Court of Canada decision. Generally, the evidence should not be something that could have been brought at trial through due diligence, it must be relevant to a decisive issue, it must be credible, and it must be something that could reasonably have affected the result. The diligence rule can be relaxed in criminal cases to avoid an injustice, but do not count on it. In a practical sense, a witness who came forward later or new forensic information might qualify, whereas a witness you chose not to call likely will not.
Sentence Appeals
You can appeal a sentence without appealing a conviction, and vice versa. On indictable matters, you need leave of the Court of Appeal or a judge to appeal a sentence under section 675(1)(b), and the leave application is typically heard together with the appeal.
Appeal courts do not simply vary a sentence because they might have imposed something different. In R. v. Lacasse, the Supreme Court said that intervention is justified only where a sentence is demonstrably unfit, or where an error in principle, a failure to consider a relevant factor or an erroneous consideration of an aggravating or mitigating factor had an impact on the sentence.
An unusual risk comes with this. Under section 687, on a sentence appeal, the court may vary the sentence within the limits set by law. It can vary it up as well as down, in theory, even when only the offender appealed. This is uncommon, and courts generally warn the appellant first, but your lawyer should discuss it.
A sentence may have a major immigration effect, which sometimes drives the appeal. A difference of a single day can affect the rights of a permanent resident at the Immigration Appeal Division. Collateral immigration consequences can be a relevant factor in fixing a fit sentence, so raise them with your lawyer and speak with immigration counsel as well.
Staying Out of Custody While You Wait
Appeals can take many months. If you were sentenced to jail, you may ask for release pending appeal, sometimes called bail pending appeal. It is a different test from the bail you had before trial. Because you have been convicted, the presumption of innocence no longer applies.
Under section 679(3), for a conviction appeal to the Court of Appeal, you must show that:
- the appeal is not frivolous
- you will surrender into custody as required
- your detention is not necessary in the public interest
For a sentence-only appeal, you must first get leave, and the court asks whether the appeal has sufficient merit that detention would cause unnecessary hardship. Section 816 provides a similar release process for summary conviction appeals. Applying can be done quickly when the materials are ready, which is why an appeal lawyer often wants a plan right after the verdict. Ask your trial lawyer about it even before the sentencing date.
Some parts of a sentence can be paused while the appeal runs. A driving prohibition for an impaired or other driving offence, for instance, can sometimes be stayed under section 320.25 of the Code, and section 683(5) allows certain other orders, including fines, to be suspended. Ask whether this applies, as it won’t happen automatically.
How the Process Unfolds
The steps vary depending on the court, but a typical appeal from Brampton looks something like this:
- Notice of appeal filed and served within the deadline, stating the grounds.
- Transcripts ordered from the court reporter, with a certificate confirming the order. These can be expensive and may take weeks or months.
- Factum (written argument) prepared and filed, with a book of authorities and exhibits. Crown responses follow.
- Hearing before a panel, usually three judges at the Court of Appeal or one at the Superior Court. Many are decided after a relatively short oral argument. Inmate appeals may be handled by way of a different procedure.
- Decision, either right away or at a later date.
Possible outcomes include dismissal, a new trial, an acquittal entered by the appeal court, a substitution of a conviction for a different offence, or a varied sentence. A new trial may be the most common win, which means going through the whole process again. A successful appeal rarely ends everything at once. This should be part of your planning.
Costs and Legal Aid
Appeals are labour-intensive because they rely on complete transcripts and detailed legal research. Budget for fees as well as transcript costs. Legal Aid Ontario has a process for appeals and, for those who qualify, can provide a certificate where the appeal has merit. If you cannot afford a lawyer, section 684 allows a court to appoint counsel where it is in the interests of justice and you lack means. Legal Aid Ontario can tell you what is available in your situation.
The Crown can appeal too. It has its own rights of appeal, including from an acquittal on a question of law alone, under section 676, and from a sentence with leave. Summary appeals have their own route under section 813. If you were acquitted or received a light sentence, a Crown appeal may still be possible within the same short time frames.
First Steps After a Verdict You Think Is Wrong
Note your sentencing date and the 30-day mark. Tell your trial lawyer at once that you might want to appeal, and ask for a copy of your file. Make notes of what you think went wrong while it is still fresh. Consider contacting a lawyer who handles appeals, as this requires a different approach from trial work and a fresh set of eyes can help.
You can learn more on our criminal law page or contact the office with your sentencing date and the court where the matter was heard. An honest look at the transcript may show a real issue, or it may show that a further fight is unlikely to help. Either answer is useful to have before the deadline passes.