A criminal conviction is not always the end. If your trial was unfair, if the judge made a legal error, or if important evidence was wrongly admitted or excluded, you may have grounds to appeal. I review criminal convictions and sentences across Ontario, appearing before the Court of Appeal for Ontario and, where appropriate, the Supreme Court of Canada.
Conviction Appeals vs. Sentence Appeals
A conviction appeal asks the court to overturn the finding of guilt. You are arguing that the trial was fundamentally flawed: the judge made an error of law, the jury was misdirected, evidence was wrongly admitted or excluded, or the Crown failed to prove its case to the required standard. A sentence appeal is different. You are not contesting guilt, you are arguing that the sentence was too harsh given the circumstances, the offence, and your background. Both types of appeal are available to both the Crown and the defence, though the Crown's ability to appeal an acquittal is limited by law.
Act Fast: Filing Deadlines Are Strict
This is the most important practical point about appeals. For summary conviction offences, you have 30 days from the date of conviction or sentence to file your notice of appeal. For indictable offences, the deadline is also 30 days in most circumstances. Missing this deadline does not automatically end your case, an extension can be applied for, but extensions require justification and are not guaranteed. If you think you want to appeal, call as soon as possible after conviction. Do not wait.
Grounds for Appeal: What Actually Works
Not every mistake at trial is grounds for appeal. The error must have been significant enough to affect the outcome or to undermine the fundamental fairness of the trial. Common grounds include misapplication of the standard of proof, wrongful exclusion or admission of evidence, failure to provide adequate reasons for a conviction, errors in the assessment of witness credibility, and improper jury instructions on key legal concepts.
Charter violations can also ground an appeal. If your rights were breached before or during trial and the trial judge failed to properly exclude the resulting evidence, the Court of Appeal can review that decision. For background on how Charter arguments work at the trial level, see my guide to criminal trials in Toronto.
Fresh Evidence Applications
In some cases, new evidence emerges after trial that was not reasonably available at the time. This could be new scientific analysis, a witness who has come forward, or documentation that was previously unavailable. Introducing fresh evidence on appeal requires meeting a specific legal test: the evidence must be credible, reasonably capable of belief, and such that it could reasonably be expected to have affected the result at trial. Successful fresh evidence applications are rare but powerful when available.
What the Court of Appeal Process Actually Looks Like
Appeals are primarily paper-based proceedings. Your lawyer prepares a written factum, a detailed legal argument setting out the grounds of appeal and the remedy sought. The Crown files a responding factum. Both sides then make brief oral arguments before a panel of three judges. Unlike trial, there are no witnesses and no new evidence is introduced. The court reviews the record from below and decides whether the legal standards were met.
The Court of Appeal can acquit, order a new trial, vary the sentence, or dismiss the appeal. An acquittal is reserved for cases where the evidence clearly could not support a conviction. A new trial is the more common remedy when a legal error affected the fairness of the original proceeding.
Post-Conviction Options Beyond the Appeal
Appeals are not the only post-conviction avenue. A record suspension through the Parole Board of Canada can seal your criminal record from public view after a waiting period. In cases of potential miscarriage of justice, a section 696.1 ministerial review application can be made to the federal Minister of Justice. For more on records and their long-term impact, see my post on criminal records and your future.
Can You Afford an Appeal?
Legal Aid Ontario provides coverage for some appeals, particularly where the accused is in custody or faces serious jeopardy. For those who do not qualify for legal aid, I offer a direct consultation to assess the strength of the grounds and the realistic cost of proceeding. Not every conviction is worth appealing. The goal of that first conversation is to give you an honest assessment, not to sell you a process. Contact me for a free, confidential consultation; see also our FAQ.
