Criminal Appeals in Ontario: What You Need to Know

A criminal conviction can have life-altering consequences: imprisonment, a permanent criminal record, loss of employment, and damage to your reputation. But a conviction at trial is not necessarily the final word. If your trial was tainted by legal errors, you may be able to have the conviction overturned on appeal.

Where Criminal Appeals Are Heard

The route of appeal depends on the court that entered the conviction. Summary conviction appeals from the Ontario Court of Justice go to the Superior Court of Justice. Indictable offence appeals go directly to the Ontario Court of Appeal. Appeals from the Ontario Court of Appeal on questions of law can go to the Supreme Court of Canada, but only with leave (permission).

Grounds for Criminal Appeals

Under section 686 of the Criminal Code, the Court of Appeal can allow a conviction appeal where the verdict is unreasonable or cannot be supported by the evidence, the judgment is wrong on a question of law, or there was a miscarriage of justice. Common issues on appeal include:

• Misdirections to the jury on the law or the burden of proof

• Improper admission or exclusion of evidence

• Charter violations, such as unreasonable search and seizure (section 8) or denial of the right to counsel (section 10(b))

• Inadequate or flawed reasons for judgment

• Ineffective assistance of counsel at trial

Sentence Appeals

Even if you do not challenge the conviction itself, you may have grounds to appeal the sentence. Appellate courts can intervene where the sentencing judge made an error in principle, failed to consider a relevant factor, overemphasized a factor, or imposed a sentence that is demonstrably unfit. Sentence appeals can result in a reduced sentence, a conditional sentence instead of jail time, or other adjustments.

Bail Pending Appeal

If you have been sentenced to jail, you may apply for bail pending appeal under section 679 of the Criminal Code. To succeed, you must show that the appeal is not frivolous, that you will surrender yourself into custody when required, and that your detention is not necessary in the public interest. A bail pending appeal application is heard by a single judge of the Court of Appeal.

Fresh Evidence on Appeal

In some cases, new evidence emerges after trial that could have affected the outcome. The Court of Appeal can receive fresh evidence on appeal if it meets the test from Palmer v. The Queen: the evidence must be relevant, credible, and reasonably capable of affecting the result, and there must be a reasonable explanation for why it was not presented at trial. Fresh evidence applications are particularly important in cases involving wrongful convictions.

The Importance of Acting Quickly

The deadline to file a criminal appeal is typically 30 days from the date of conviction or sentence. Extensions are possible but require a separate motion and a reasonable explanation for the delay. The sooner an appellate lawyer can review the trial record, the more effectively they can identify errors and preserve all available options.