Appeals are won on paper. A well-argued document laying out exactly where the trial went wrong is worth more than any passionate argument in court.
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 handle both summary conviction appeals in the Superior Court of Justice and indictable appeals in the Court of Appeal for Ontario, and, where appropriate, applications to the Supreme Court of Canada.
Two Routes: Summary Conviction Appeals and Indictable Appeals
Which court hears your appeal depends on how the Crown proceeded at trial, not on how serious the charge feels. Many common charges, including assault, impaired driving and theft under $5,000, are hybrid offences. The Crown chooses to proceed summarily or by indictment, and that choice fixes the appeal route. The election is on the court record, so it can be confirmed before anything is filed.
Summary Conviction Appeals
If the Crown proceeded summarily, the appeal goes to the Superior Court of Justice, sitting as the summary conviction appeal court under Part XXVII of the Criminal Code. You can appeal the conviction, the sentence, or both. The appeal is heard by a single judge, based on the trial transcript and written arguments. A further appeal to the Court of Appeal for Ontario needs that court's leave and is limited to questions of law alone, so in practice the summary conviction appeal is usually the one real chance to have the decision reviewed. It has to be done properly the first time.
Indictable Appeals
If the Crown proceeded by indictment, or the offence can only be prosecuted by indictment, the appeal goes directly to the Court of Appeal for Ontario under Part XXI of the Criminal Code. That is true whether the trial took place in the Ontario Court of Justice or the Superior Court, with or without a jury. A conviction appeal on a question of law can be brought as of right. Grounds that turn on questions of fact, or of mixed fact and law, need leave of the Court of Appeal, as does every sentence appeal, and leave is sought together with the appeal itself. Indictable appeals are heard by a panel of three judges. A further appeal to the Supreme Court of Canada is available as of right only where a Court of Appeal judge dissents on a point of law. Otherwise the Supreme Court's leave is required.
Release While the Appeal Is Pending
If you are serving a jail sentence, you can apply for bail pending appeal: under section 816 of the Criminal Code on a summary conviction appeal, and under section 679 on an indictable appeal. The questions are similar in both courts. The appeal must not be frivolous, you must show you will surrender into custody when required, and your detention must not be necessary in the public interest. A notice of appeal filed promptly, with real grounds, is what makes this application possible.
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. On both routes, the notice of appeal must generally be filed within 30 days after sentence is imposed. The clock runs from sentencing, not from the guilty verdict, but 30 days is short, and the trial transcript has to be ordered at the same time. Missing the deadline does not automatically end the appeal. Both courts can extend the time, and they look at whether you intended to appeal within the time limit, how the delay is explained, and whether the appeal has merit. Extensions are not guaranteed. If you think you want to appeal, get advice while an extension is still realistic.
Grounds for Appeal: What Actually Works
Not every trial mistake is grounds for appeal. The error must have been serious enough to affect the outcome or to make the trial fundamentally unfair. Common grounds include using the wrong legal standard, wrongly excluding or allowing key evidence, failing to explain the reasons for a conviction, errors in judging witness credibility, and giving the jury wrong instructions on the law.
Charter violations can also support an appeal. If your rights were breached before or during trial and the judge failed to exclude that evidence, the appeal court can review that decision. For how Charter arguments work at trial, see my guide to criminal trials in Toronto.
Fresh Evidence Applications
Sometimes new evidence comes up after trial that wasn't available at the time. It could be new scientific analysis, a witness who has now come forward, or documents that were previously out of reach. To bring new evidence on appeal, it must be credible and strong enough that it could have changed the result at trial. These applications are rare, but powerful when they succeed.
What the Appeal Process Looks Like
Appeals are mostly done on paper. Your lawyer prepares a written document called a factum, a detailed legal argument that explains what went wrong and what remedy you are seeking. The Crown files its own response. Both sides then make short oral arguments, before a single Superior Court judge on a summary conviction appeal, or a panel of three judges at the Court of Appeal. There are no witnesses and no new evidence introduced. The court reviews the trial record and decides whether legal standards were met.
The appeal court can acquit, order a new trial, change the sentence, or dismiss the appeal. Acquittals are rare. They are reserved for cases where the evidence clearly could not support a conviction. A new trial is the more common result when a legal error made the original trial unfair.
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 review application can currently 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. One change is coming: the Miscarriage of Justice Review Commission Act (David and Joyce Milgaard's Law) received Royal Assent on December 17, 2024 and will move these applications from the Minister to an independent commission. The commission is not yet operating, so for now the Criminal Conviction Review Group continues to handle applications, and existing applicants will be able to transfer to the commission once it is established.
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 evaluation of 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 evaluation; see also our FAQ.
