Frequently asked appeal questions

What are the grounds for appealing a conviction? 

person who has been convicted of a crime can appeal for one of three reasons.  1) The first is where the verdict is unreasonable.  Under Canadian law, an appellate court may allow the appeal and order an acquittal where the verdict is not reasonable. That means where the appeal court concludes that no properly instructed jury, acting reasonably, could convict. 2) The second reason for appellate intervention occurs where the trial judge made an error in law. To succeed on this type of appeal, the appellant must prove that the trial judge improperly admitted evidence, made an error in principle, or misdirected the jury.  3) The final basis of appellate intervention is where a miscarriage of justice occurred at trial. This may include actions of the judge, the Crown, or witnesses that undermined fairness. These reasons for appealing can be nuanced and complex.  The best appeal lawyers in Ontario understand these grounds and know how to engage them successfully on appeal.

What are the grounds for appealing a sentence? 

A person who has been convicted of a crime sentenced can appeal for two reasons under Canadian law.  1) The first reason is if the sentence judge made an error in principle in his or reasons for sentence.  An error justifying intervention on appeal may include overemphasizing a relevant factor on sentence or applying an incorrect principle of law. These types of errors prompt an appellant court to intervene only where the error impacted the sentence.  In other words, harmless or immaterial errors will not lead to a success appeal against sentence.  2) The second reason for a sentence appeal is where the trial judge imposed a sentence that is demonstrably unfit. This means a sentence that is disproportionate to the gravity of the crime and the moral culpability of the offender.  Under Canadian law, an appeal court must not intervene simply because it would have imposed a different sentence.  It may only allow the appeal where there was an error that impacted or sentence or the sentence was demonstrably unfit.

How long do I have to appeal?  

The answer to this question depends on what court you are appealing to.  For appeals from summary conviction offences, an appellate will appeal to the Summary Conviction Appeal Court.  He or she will have 30 days following sentencing to launch the appeal.  For appeals from indictable offences, the appeal lies with the Ontario Court of Appeal. In that case, the appellate will also have 30 days from sentencing to file his or her notice of appeal.  To appeal to the Supreme Court of Canada, the appellant must first apply for leave to appeal.  He or she has 60 days from the Court of Appeal’s decision from which to apply for leave to appeal to the Supreme Court.

How do I appeal a conviction or a sentence?    

Appeals in Ontario are not like trials.  In trials, witnesses testify and are cross-examined. On appeals, the Ontario Court of Appeal decides whether to grant or deny the appeal based on the written record (transcripts) from trial as well as the arguments of the lawyers.  For this reason, appeals are very different than trials.  The appeal process begins when the person appealing files a notice of appeal and orders the transcripts from trial.  Once the transcripts are prepared, the appellant files the transcripts with the appeal court. From there, his or her lawyer reviews the transcripts and writes a factum–written argument as to why the appeal should be allowed.  Once the factum is filed with the court as well as the exhibits from trial, the appeal is considered “perfected” and a hearing date is set.  At the hearing, both lawyers are given time to make their argument to the Ontario Court of Appeal. At times, the court dismisses the appeal from the bench, meaning it does not take time to consider its decision. Other times, it allows the appeal from the bench, or reserves its judgment, which means that it takes time to consider and decide the case.