Appeals

APPEALS

Not happy with your conviction? Think the judge got it wrong? – your only hope is an appeal.

An appeal is very different from a trial. Witnesses are rarely called. The court relies on the transcript of testimony from the trial and written submissions of the parties. 

While oral (spoken) argument is the aspect most people are familiar with, it is usually the least important. More important are the written submissions. These are laid out in a “factum”, a highly structured document written according to convention and tradition.

Written submissions are key

Time and again the Ontario Court of Appeal has said that the factum is the most important part of the appeal. So it is essential to have a good one. Without legal training, it would be difficult to write a persuasive factum. 

Errors by trial judge

In an appeal, arguments are generally limited to allegation of error committed by the trial judge such as rulings on the admission of evidence.

Where the appellant wants to argue that the judge got it wrong or that the accused was wrongfully convicted, he or she must prove that the verdict was “unreasonable” or not supported by the evidence. This is a very strict standard and will often require “fresh evidence.”

Provincial offences

There are two kinds of convictions under the POA: those under Parts I or II (for minor traffic offences and parking infractions), and those under Part III, which are for more serious offences. For convictions under Parts I or II, and for Part III convictions where the trial was before a Justice of the Peace, the appeal is to a judge of the Ontario Court of Justice. For Part III convictions where the trial was before a judge of the Ontario Court of Justice, the appeal is to a judge of the Superior Court of Justice.

You have 30 days to file a notice of appeal. Unless you apply to stay the fine payment order, you must pay the fine before launching your appeal. If your driver’s licence was suspended (eg, following conviction for driving while under suspension), and you wish to drive pending appeal, you must apply for a stay of the suspension order.

Criminal offences

Another kind of conviction involves prosecutions conducted by summary conviction. Many offences under the Controlled Drugs and Substances Act and Criminal Code fall within this category, including possession of marijuana and most cases of drunk driving, simple assault, and theft or fraud under $5,000.

In Ontario, an appeal involving summary conviction proceedings is to the Superior Court of Justice. The notice of appeal must be filed within 30 days of the end of the trial.

The last, and usually most serious, kind of offence is one prosecuted by indictment. Appeals involving indictable offences, or hybrid offences prosecuted by indictment, are to the Ontario Court of Appeal. The notice of appeal must be filed within 30 days of the end of the trial.

Launching the appeal

To launch an appeal the first step is to file a notice of appeal. 

The notice must set out whether the appeal is against conviction, sentence, or both. 

The notice of appeal must be served on the Crown. That means that it must be sent to the Crown’s office within the time specified by the rules. Failure to meet the time limits may cost you the right of appeal.

After you have served the notice on the Crown, you must file it with proof of service at the appeal court.

Common grounds of appeal

Common ones include:

  • judge improperly admitted evidence
  • judge failed to give reasons for a decision
  • judge failed to consider an important piece of evidence
  • judge made a mistake in charging the jury
  • verdict was unreasonable (no facts to support it)
  • Crown asked improper questions in cross-examining the accused
  • Charter rights of the accused were violated (e.g., illegal search by police) and the judge failed to give a proper remedy (such as excluding incriminatory evidence)
  • judge was biased

Bail pending appeal

If you appeal your conviction or sentence, you can apply for bail pending appeal, that is, for release from custody until your appeal is decided. 

You can apply to hold off payment of a fine until the appeal is decided.

An application for bail pending appeal can be made after the notice of appeal has been filed. A hearing will be held, and bail may be granted where the presiding judge is convinced that your appeal is not frivolous, that you will surrender into custody as ordered, and that your detention is not necessary in the public interest.

Order the transcripts

During every trial in Canada, every word spoken by counsel, the judge or a witness is recorded on tape. In Ontario, to appeal a decision, you’ll need three copies of the transcript of the proceedings. Be prepared: transcripts may be expensive.

Write a factum

You must be able to prove every factual assertion in your factum by reference to something on paper: either one of the exhibits at trial or testimony in the transcripts. If you cannot point to proof, your argument will be rejected.

Similarly, your legal arguments should be supported by precedent (case-law). Unsupported arguments will not be taken seriously.

Book of Authorities: contains a copy of every case relied on in the factum. Draw the judge’s attention to the passages you’re relying on by “sidebarring,” that is, drawing a line in the margin beside the relevant passage.

Perfect the appeal

Once you have all the necessary copies of the transcripts, factums, and books of authorities, you are ready to “perfect” your appeal. This requires serving all the documents on the Crown, and then filing proof of service, in the Court of Appeal. 

Preparing for oral argument

The date set for your appeal will likely be a few months in the future. In the interim, you (or your lawyer) should become very familiar with all the documents you rely upon for your appeal – that means you should know the trial transcript backwards and forwards, and know the case law you rely on inside and out.

Arguing an appeal is different than conducting a trial – when you argue an appeal, most of your time is spent answering questions the judges ask. 

Responding to a Crown (Prosecution) appeal

Sometimes, the Crown will decide to appeal. Crown appeals from an acquittal are limited to questions of law. The Crown may also appeal, on questions of mixed law and fact, from orders staying proceedings or quashing a ticket. 

Crown appeals are subject to the same procedural steps and time limits. That means it must serve you a notice of appeal within 30 days of the decision it’s appealing. You can then expect to receive a factum and other supporting documents later.

Finding the right Legal Help

An appeal is governed by different rules than a trial. There are lawyers who specialize in appeals. When choosing a paralegal or lawyer, be sure to pick one with appellate experience. The Crowns who argue appeals in Ontario do nothing else, so it’s in your best interest to have a defence representative who is equally specialized.


Disclaimer: This is not legal advice. The author(s) posting these article(s) are not responsible for any loss, damages, convictions or fines as a result of using these article(s) or any content in these article(s). Use at the reader’s risk. Please consult a lawyer or a paralegal if in doubt. These articles are for the purposes of informing the average person.