Being charged with a criminal offence is devastating, especially when you are innocent, but being convicted is a lot worse. Apart from being a life-changing event, your conviction can have a wide range of negative consequences, including a criminal record and subsequent criminal penalties. If you are unfortunate enough to face this situation, what are you supposed to do? You need to appeal the conviction in the Superior Court of Justice (for summary convictions) or the Court of Appeal for Ontario (for indictable offences) with the help of a criminal defence lawyer. Keep reading to find out about the criminal appeal process in Ontario.
Criminal Appeals in Ontario: What Is the Process?
Decisions That Can be Appealed
To understand the steps to appeal a conviction, it is necessary to know that you cannot appeal everything. You may appeal your conviction, the sentence you received (including a probation order), or both the conviction and the sentence. The prosecutor also has the right to appeal the decision if you are acquitted at your trial or your sentence. That being said, in some cases there is a right to appeal and in others, the court’s permission is required (i.e., ‘leave to appeal’). A right to appeal is provided by statute, whereas leave to appeal is required for appeals on sentencing and for the majority of appeals to the Supreme Court of Canada.
Where to Appeal
If you are convicted of a summary offence, the appeal will be heard in the geographical area where the offence occurred. For example, if you receive a summary conviction in Brampton, the appeal will be heard in the Brampton Superior Court. On the other hand, if you want to appeal an indictable offence conviction, it should be appealed in the Ontario Court of Appeal.
Quick Fact
Appeals must generally be filed within 30 days of the date of sentencing.
Starting an Appeal
1) File a Notice of Appeal
The first step in the appeal process against a sentence or verdict is to complete and file a ‘Notice of Appeal’. This form is available at the court office where your trial took place. You must mention the reason for your appeal (conviction, sentence or both) and briefly explain the grounds for appeal. Your criminal defence lawyer will help you with all the documentation. If you are in custody, jail staff should help you with filing an appeal. This is called an inmate notice of appeal.
2) Pay Outstanding Fines
If your sentence includes a fine, you will have to pay it before you file your Notice of Appeal. The receipt of fine payment should be attached to your notice. However, if you want to apply to the appeal court for permission to file your notice without paying the fine, you must fill out and submit an ‘Application to File an Appeal without Paying the Fine’ that mentions the reason why you were unable to pay the fine.
3) Submit Transcripts or Digital Trial Recordings
In some types of appeals, transcripts must be submitted along with other documents. (Transcripts are written records of what was said at a court hearing.) If required, submit the transcript of your trial to the appeals court and the prosecutor’s office or your appeal may be dismissed. However, some courthouses accept digital trial recordings instead of a transcript. Make sure you check the requirements when filing your appeal.
4) Be Prepared to Appear in Court
If your appeal is accepted, the appeal court office will mail you a written notice indicating the date, time, and location of your hearing. Be prepared to appeal in court and state your argument. Generally, new pieces of evidence are not accepted at an appeal hearing and you will not be required to testify. But if you have new evidence, get permission from the court to introduce it. Also, have your oral argument prepared, as the court will ask you to present your argument first, followed by the prosecutor. Consult your criminal defence lawyer to understand the course of action and carry all necessary documents with you.
5) Wait for the Appeal Decision
The five types of decisions an appeal court can make are dismissal, ordering a new trial, an acquittal, substitute a verdict of guilt, or varying a sentence. Here is what each decision means:
- Dismissal: The court found the trial to have been properly conducted and the evidence supports the verdict of the lower court.
- Ordering a new trial: The court found that the trial was not fairly conducted, and the acquittal or conviction will be set aside while ordering a new trial.
- Substitute a verdict of guilt: In rare cases, the court overturns an acquittal, substituting a verdict of guilt. In this case, the accused has the right to appeal to the Supreme Court.
- Acquittal: The court finds that the evidence presented does not support the conviction, there was a miscarriage of justice, or the conviction was unreasonable and hence results in acquittal.
- Varying sentence: The court may increase or decrease the sentence depending on the review of evidence.
The appeal judge may make their decision on the same day of the hearing or schedule another hearing if the appeal judge wants more time to decide. If the appeal judge decides the latter, either you will be called to hear the decision or it will be sent to you and the prosecutor in writing. If the appeal judge orders a new trial, it will take place in the same court where your trial was first held.
The criminal appeal process is an integral part of the rule of law in Canada, allowing people to fight for their rights and challenge wrong legal decisions. If you or your loved one is wrongfully convicted of a crime or is facing an unreasonable sentence, you can appeal the decision with the help of a criminal defence attorney. It might seem like a daunting process, but it is worth the effort to avoid the long-term consequences of a criminal conviction.