When Can You Appeal a Conviction?

Anyone in Canada who has been convicted of a criminal charge is entitled to appeal the court’s finding of guilt or appeal their sentencing or both. The prosecution may also appeal an acquittal or sentencing but the conditions for an appeal by the Crown are more restricted than they are for a person found guilty of an offence. The Crown may only appeal if they can show there was a substantive error of law, such as excluding important evidence.

The goal of the appeal process in Canada is to determine whether the original trial was conducted properly and also, whether the court’s findings and sentencing are fair. Contrary to what many people think, an appeal is not a re-trial and accordingly, does not generally include presentation of physical evidence and witness testimony. However, in some cases, the appeal court may order a re-trial in which all the original evidence and more, may be considered. For most people, the idea behind requesting an appeal is to have your conviction overturned or at least, your sentence reduced.

The appeal for a summary conviction offence (a crime involving a less serious penalty) will be heard in the Superior Court of Justice located in the community where the crime was committed. Crimes resulting in a serious penalty are called ‘indictable offences’ and these are heard in the Court of Appeal for Ontario located in Toronto. An accused can also appeal a decision of the Ontario Court of Appeal to the Supreme Court of Canada, assuming leave to appeal is granted.

On what grounds might the Appeal court overturn the decision of a lower court?

The appeal court may overturn a conviction if there were significant errors uncovered in the original trial or there is reason to believe that the trial or the decision was unfair. The appeal court will also re-examine the evidence presented in the trial to decide whether the evidence is sufficient to support a finding of guilty.

In considering whether the sentence was fair and appropriate, the appeal court will examine the type of crime that was committed, how the crime impacted the victim, the background and character of the accused, and case law for similar crimes.

The appeal process generally does not consider ‘fresh’ evidence. The appeal judge usually reviews the same evidence and testimony, by way of trial transcripts, that was considered by the lower court that decided the case. Both defence and crown counsel are required to serve and file detailed and extensive written legal submissions which are called ‘factums.’ At the appeal hearing, the opposing sides are also given an opportunity to make oral submissions regarding the law and facts and review the key facts from the transcript of the evidence at trial. However, witnesses are rarely heard in an appeal hearing. Fresh evidence is only allowed when it is deemed in the best interests of justice to do so, such as when it bears directly on a key and decisive issue in the trial. However, fresh evidence cannot be introduced on appeal if that evidence could have been admitted at the original trial, had there been due diligence.

The appeal court may make any of the following decisions:

• Dismiss the appeal, if it determines that the trial was conducted properly and the conviction is supported by the evidence. The appeal of the sentence is dismissed (not allowed) if the sentence is judged to be fair.
• Order a new trial and set aside the conviction if the appeal court decides that the trial was not fair or was improperly conducted. An acquittal may be set aside and a new trial ordered if there was a substantive error in the original trial.
• Substitute a guilty verdict and overturn the acquittal. This is not common and can be done only in cases where the original case was tried by a judge.
• Acquit and find the accused ‘not guilty’ if the evidence doesn’t support the finding.
• Change the sentencing

If an accused person’s appeal is dismissed, then they still have a further option: to apply for leave to appeal to a superior court. The Ontario Court of Appeal, in R. v. Poitras, stated that leave to allow an appeal is generally granted in one of two circumstances: “i) where there is an arguable question of law that has significance to the administration of justice beyond the four corners of the case; or ii) where there appears to be a clear error of law, even if it cannot be said that the issue is one of general importance”.

In R. v. Poitras, 2015, a man requested leave to appeal his earlier conviction on assault charges. The leave to appeal was granted by the Court of Appeal for Ontario and a new trial was ordered. The Ontario Court of Appeal decided that the Summary Conviction Appeal Court judge erred in his decision, which was that the trial judge concluded that the confrontation between the accused and his father was a non-consensual fight. In fact, the original judge had made no determination that the altercation between the father and son occurred within the context of a non-consensual fight or was an assault upon the father.

Does the accused person have to remain in jail until their appeal?

The jail sentence imposed at the original trial will continue while a person is waiting for their appeal hearing. However, a person who was found ‘guilty’ may ask to be released on bail until their appeal is heard. The court might set out several conditions for a person who is released until their appeal, such as staying away from the victim. The accused person may be requested to return to jail on the day before the appeal hearing.

Is there a deadline for filing an appeal?

To appeal a conviction, the notice of appeal needs to be filed within 30 days from the end of the trial (i.e. 30 days from the date the accused was sentenced). If this date is missed, a motion for an order to extend the time to file the notice of appeal may be filed, along with an affidavit to explain the reasons for a delay in filing for an appeal. It is a good idea to speak with your lawyer before a judgment is decided in any court hearing, to consider and plan your next steps in the event of a finding of ‘guilty’ or unfair sentencing.

Although a person can appeal a criminal conviction without the help of a lawyer, it is not recommended because the average person is at a distinct disadvantage when arguing on appeal against an experienced Crown attorney. In fact, the chances of winning an appeal are generally believed to be about twice as strong when you are represented by legal counsel. Before going ahead, an experienced criminal lawyer will also be able to offer a frank and informed legal opinion about your chances of having your conviction successfully appealed or sentencing reduced. If you do decide to proceed with an appeal, an acquittal is the ideal outcome, which means that you will not only be cleared on the charges but also of having a criminal record. More often than an acquittal, the appeal court may order a re-trial of your case, and although this gives the prosecution another opportunity to prove their case, the Crown sometimes decides not to proceed with another trial which means the case against you is essentially dropped.