Can you appeal a criminal conviction in Ontario, and where does the appeal go?

Yes, but the deadline is short: in most cases the notice of appeal must be filed within 30 days after the sentence is imposed. Summary conviction cases are appealed to the Superior Court of Justice, and cases prosecuted by indictment go to the Court of Appeal for Ontario. An appeal is not a new trial: the appeal court reviews whether errors were made.

After a conviction, families often ask two questions at once: can it be appealed, and does the person have to stay in custody meanwhile? Here is how appeals work at the end of a criminal case in Ontario, and what to do in the 30 days that matter most.

Which court hears the appeal, and by when?

The route depends on how the Crown proceeded at trial, which is explained in our page on summary and indictable offences in Ontario. A summary conviction appeal is filed with the clerk of the appeal court in the place where the trial was held (r. 40.06(4)(a)). In Toronto, our guide to the Superior Court criminal courthouse at 361 University Avenue explains that court. The Court of Appeal's Registrar is at Osgoode Hall, 130 Queen Street West, Toronto.

The Criminal Code lets the appeal court or a judge extend the time to appeal (s. 678(2)), and the Court of Appeal's rules set out how to ask. Its guide says a late notice cannot be accepted by staff, so an extension needs an order on consent or a motion to a single judge. Relying on an extension is risky; it is much better to file on time.

How does an appeal run, step by step?

1. Get advice quickly. The 30 days run from the day of sentence, not from the day you receive reasons or transcripts.
2. File the notice of appeal. For the Court of Appeal, the guide says to deliver three copies of the Notice of Appeal and Application for Leave to Appeal (Form B) to the Registrar's office, in person or by registered mail; it cannot be faxed or emailed. For someone in custody, the notice counts as filed when it is given to the senior official of the institution (r. 8(4)).
3. Order the transcripts. In the Court of Appeal, the appellant must serve and file a certificate of transcript order within 15 days of filing the notice (r. 36(2)). In a summary conviction appeal, the appellant is responsible for providing the trial transcripts and files transcriptionists' certificates with the notice (r. 40.08(1) and (3)).
4. Ask for release, if in custody. Bail pending appeal is a separate application, described below.
5. Perfect the appeal. Ontario's guide says the court needs the trial transcripts and record, an appeal book of key documents, and written arguments (factums) from both sides before a hearing is scheduled.
6. The hearing and decision. Anyone can attend an appeal hearing, including victims and their families. The court may decide at the hearing or release its decision later.

What can be appealed?

For a conviction on indictment, section 675(1) allows an appeal against the conviction on a question of law alone as of right; on a question of fact, or mixed fact and law, with leave of the Court of Appeal or a certificate from the trial judge; and on any other ground the court considers sufficient, with leave. An appeal against sentence needs leave unless the sentence is fixed by law. For summary conviction cases, the defendant can appeal a conviction or order and the sentence (s. 813).

According to Ontario's Ministry of the Attorney General, on a conviction appeal the court may review how the issues were handled at trial, consider whether significant errors affected the trial, and consider whether there was enough evidence to support the conviction. On a sentence appeal, it considers whether the sentence is fair and appropriate and whether sentencing principles were applied correctly.

What can the appeal court decide?

• dismiss the appeal, if no error was made, an error had no impact on the outcome, or the sentence was appropriate;
• set aside the conviction and order a new trial or enter an acquittal; or
• change the sentence, by shortening or lengthening it or adding or removing penalties such as a fine or probation.

The Code sets the grounds. A conviction appeal can be allowed if the verdict is unreasonable or cannot be supported by the evidence, if there was a wrong decision on a question of law, or if there was a miscarriage of justice (s. 686(1)(a)). Even where a legal error is found, the court may dismiss the appeal if no substantial wrong or miscarriage of justice occurred (s. 686(1)(b)(iii)). On a sentence appeal, the court considers whether the sentence is fit and may vary it within the limits the law allows, or dismiss the appeal (s. 687(1)). The same powers apply to summary conviction appeals (s. 822(1)). Where the argument is that jail should have been served in the community, the test is the one in our page on conditional sentences in Ontario.

The Crown can appeal too, but its right is much more limited: to appeal an acquittal, it must show a significant error of law that had a substantial impact on the result.

Can new evidence be used on appeal?

Sometimes. The Court of Appeal can, where it considers it in the interests of justice, order the production of documents or exhibits, order a witness to be examined, and receive the evidence of a competent witness, including the appellant (s. 683(1)). An appeal is still not a second trial, so this is the exception.

Immigration consequences are a common example. In R. v. Pham, 2013 SCC 15, the Supreme Court of Canada said an appeal court may intervene if the sentencing judge was not aware of the collateral immigration consequences of a sentence, and that where the issue was not raised at sentencing and the Crown does not consent, an affidavit or other evidence should be put before the appeal court. Our page on how a criminal conviction can affect permanent resident status explains why the six-month line matters.

Can you be released on bail while the appeal is pending?

A prison sentence continues even after an appeal is started, but you can ask the appeal court for release. Under section 679, a judge of the Court of Appeal can release an appellant who has filed a notice of appeal against conviction if the appellant shows that the appeal is not frivolous, that they will surrender into custody as required, and that detention is not necessary in the public interest. For a sentence-only appeal, leave must be granted first, and the appellant must show the appeal has enough merit that detention would cause unnecessary hardship.

In a summary conviction appeal, an appellant in custody stays there unless the appeal court makes a release order, which must include a condition to surrender into custody (s. 816(1)). Release comes with conditions, including returning to custody when the appeal is heard or decided.

What changes the answer?

• How the Crown proceeded. Summary cases go to the Superior Court (s. 813); indictable cases go to the Court of Appeal (s. 675).
• Conviction or sentence. A sentence appeal to the Court of Appeal needs leave unless the sentence is fixed by law (s. 675(1)(b)).
• The kind of error. A question of law alone can be appealed as of right on an indictable conviction; questions of fact need leave or a certificate (s. 675(1)(a)).
• Custody. An inmate's notice is treated as filed when given to the institution's senior official (Court of Appeal r. 8(4); Superior Court r. 40.06(1)).
• Time. After 30 days, only an extension keeps the appeal alive (s. 678(2)).
• Immigration status. Inadmissibility cannot be based on a conviction that ends in a final acquittal (IRPA s. 36(3)(b)), and a prison term of at least six months removes the appeal to the Immigration Appeal Division (IRPA s. 64(2)).

For example: a sentence that crossed the six-month line

This is a hypothetical, not a real client or a result. Suppose a permanent resident who speaks mostly Farsi is convicted of assault after a summary trial in Toronto and sentenced to seven months in jail. A summary conviction carries a maximum of two years less a day unless the law says otherwise (s. 787(1)). Nobody told the judge about his status, and seven months is more than six, the line in IRPA s. 36(1)(a). Our page on assault charges in Ontario explains the offence itself.

His wife calls a lawyer three weeks after sentencing. The lawyer, speaking with the family in Farsi, files the notice of appeal against sentence in the Superior Court within the 30 days, orders the transcripts and applies for release pending appeal under s. 816. The lawyer gathers affidavit evidence about the immigration consequences, as Pham describes, and argues that the sentencing judge decided without a relevant factor.

The appeal court may reduce the sentence or may decide seven months was fit regardless. The point is that the evidence had to be gathered and the notice filed inside the 30 days.

What mistakes do people make after a conviction?

1. Waiting for the written reasons. The 30 days run from sentence (r. 8(3); r. 40.05), whether or not reasons or transcripts are ready.
2. Treating an appeal as a retrial. The court reviews for errors; it does not usually hear the witnesses again.
3. Forgetting the transcripts. Deadlines for ordering them start almost at once (r. 36(2); r. 40.08(3)).
4. Assuming the sentence can only go down. Ontario's guide says the court can change a sentence by increasing or reducing it, so weigh the risk with a lawyer.
5. Leaving immigration out of the appeal. If status was never raised at sentencing, Pham says evidence of it should be put before the appeal court.

What can you do this week?

1. Write down the date of sentence and count 30 days from it.
2. Collect the sentencing documents: the information or indictment, the warrant of committal or probation order, and any written reasons.
3. Speak with a lawyer about the grounds of appeal and whether to appeal conviction, sentence or both.
4. If the person is in custody, ask about release pending appeal at once.
5. Tell the lawyer about immigration status, and whether the family needs to speak in Farsi.

Frequently asked questions

Can my trial lawyer handle the appeal?

Sometimes, but an appeal is a different kind of work, built on transcripts and written arguments. A fresh review of the record is often useful, especially if the appeal raises how the trial was run.

Does starting an appeal stop the jail sentence?

No. Ontario's guide says a prison sentence continues even if you have started an appeal. You must apply separately for release pending appeal (s. 679 or s. 816).

What if the 30 days have already passed?

The appeal court or a judge can extend the time (s. 678(2)). In the Court of Appeal, that means an order on consent or a motion before a single judge, so act as soon as you can.

Can I follow the appeal hearing in Farsi?

A party who does not understand the language of the proceedings has the right to an interpreter (Charter s. 14), and Ontario provides interpretation in criminal matters. Our guide for Persian-speaking people charged in the GTA explains how interpreters work in Ontario courts.

Can the victim attend the appeal?

Yes. Ontario's guide says anyone can attend appeal hearings, including victims and their families. If an offender who caused serious injury or trauma is released on bail, the victims are notified.

Is appealing better than preparing for sentencing?

If sentencing has not happened yet, the better use of time is usually preparing for it. Our page on pre-sentence reports and victim impact statements explains that stage. To compare where different results leave you, read what each criminal case outcome means.

Getting help

An appeal looks for errors; it does not rehear the whole case, and the first 30 days decide whether it can be brought at all. Gambriani Law PC reviews convictions and sentences for possible appeals, in English or Farsi, from Suite 1901, 5000 Yonge Street in North York. Call +1 647 970 3370, Monday to Friday, 9:00 a.m. to 5:00 p.m.; the sooner after sentencing you call, the more time there is to act.

This page is general information about criminal appeals in Ontario, not legal advice about your case.