The Criminal Appeal Process in Ontario

The Criminal Appeal Process in Ontario

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A criminal conviction can be a significant and life changing event with wide-ranging negative consequences.  It is important to be aware that many criminal convictions can be appealed.  An appeal can be made against conviction, sentence, a verdict of unfit to stand trial, or a finding of not criminally responsible on account of mental disorder. In Ontario, appeals are heard by the Superior Court of Justice (summary conviction appeals), the Ontario Court of Appeal (indictable appeals) and the Supreme Court of Canada (appeals with issues of national importance or divided legal opinions at the lower courts).  Due to the nature of criminal law and the important constitutional and legal principles at stake, the rules governing criminal appeals are relaxed in comparison to civil appeals.  Appeals are challenging and can be technically complex.  Although you are not required to have legal representation by a Toronto criminal lawyer for an appeal, it is highly recommended and will be invaluable in navigating such a difficult process.

Right and Leave to Appeal

In some instances, there is a right to appeal, and in others permission of the court is required.  Permission to appeal is referred to as “leave to appeal.”  A right of appeal is provided by statute, while the requirement of leave gives the courts discretion to refuse to hear an appeal.  Leave is required for appeals on sentencing and for the majority of appeals to the Supreme Court of Canada.  A right to appeal allows those convicted of an indictable or summary offence to appeal conviction on specific grounds.  Both an accused and the Crown can appeal. The Crown’s right to appeal for indictable matters is limited to questions of law alone, while for summary convictions it is not, and the Crown can appeal factual determinations as well.

Types of Offences

The type of offence will determine the route of the appeal process.  There are summary offences and indictable offences. Summary offences are the lesser offences in the Criminal Code.  They generally have a maximum penalty of 6 months in jail, a $5,000 fine, or both. Summary conviction appeals are heard in the geographical area where the offence occurred; for instance, if you were charged in Brampton with a summary conviction offence, the appeal would be to the Brampton Superior Court.  Indictable offences are more serious and carry greater penalties, such as life in prison.  Indictable offences include murder, kidnapping, serious sexual assaults, and robbery.  There are also hybrid offences, which make up the majority criminal offenses.  For hybrid offences, the Crown can elect to proceed summarily or by indictment.  This choice will indicate the appeal route.

Summary Conviction Appeals

Appeals of summary convictions are heard by a superior court judge.  Both the accused and the Crown have a right to appeal.  If the accused wants to appeal the decision of the summary conviction appeal judge, the accused can appeal again to the Ontario Court of Appeal.  The Ontario Court of Appeal sits in Toronto and hears appeals in panels of either 3 or 5 judges.  To make it to the Ontario Court of Appeal for a summary conviction appeal is uncommon as it can only be on a question of law alone and requires the leave of the court.

Indictable Conviction Appeals

Indictable offences operate differently.  Appeals for all indictable offences go immediately to the Ontario Court of Appeal.  The Criminal Code of Canada gives both the accused and the Crown the right to appeal the decisions of a trial court in indictable matters.  Under section 675 of the Criminal Code, a person may appeal against conviction involving a question of law alone; or a question of fact, or a question of mixed law and fact, with leave of the court. Under section 686 of the Criminal Code, the Ontario Court of Appeal can only allow an appeal against conviction if the verdict is unreasonable, an error of law was committed, or there was a miscarriage of justice.

Bail and Stays of Driving Prohibition

An appeal lawyer may be able to arrange for bail pending appeal. The appeal lawyer will have to demonstrate a valid release plan and that there is merit to the appeal.  For many driving offences, there is a prohibition on driving upon a finding of guilt.  Appeal lawyers can also apply to have these driving prohibitions “suspended” or stayed while the appeal is being heard.

The reasoning for bail and stays of driving prohibition is to ensure that the appeal doesn’t become moot due to the appellant having already served their sentence.

Time Limits

Appeals must generally be filed within 30 days of the date of sentencing.  If you are convicted and want to appeal your conviction, it is recommended that you file a notice of appeal even if you do not yet have a lawyer for your appeal.  If you are in custody, the jail staff should be able to help you with this. This is called an inmate notice of appeal. Accused who are incarcerated are given some additional latitude to file their appeals, and the court will generally accept the notice up to six months after the sentence, provided an explanation is provided on the inmate notice of appeal forms.

Remedy

There are five decisions that can be made by an appeal court.  These are: dismissal, ordering a new trial, substitute a verdict of guilt, an acquittal, or varying the sentence.  Dismissal will mean that the court found the trial to be properly conducted and that the evidence supports the verdict.  Ordering a new trial will occur where the trial was not fairly or properly conducted, and this may set aside a conviction or an acquittal, depending on who is appealing.  An appeal court may also overturn an acquittal substituting a verdict of guilt, though this happens rarely. If this occurs in the Ontario Court of Appeal, the accused has an automatic right to appeal to the Supreme Court, without needing leave to appeal (see below).  If the evidence does not support the conviction the appeal court may acquit.  The appeal court may also vary the sentence, either increasing or lowering it.  For indictable offence appeals under s. 686 of the Criminal Code, if an unreasonable verdict is found, the appeal court will enter an acquittal.  However, under the same section, for a legal error or a miscarriage of justice, a new trial will be ordered.

The Supreme Court of Canada

The Supreme Court acts as the final court of appeal for the appeal courts of all Provinces and Territories in addition to the Federal Court of Appeal and the Federal Court Martial Appeal Court.  There are nine judges that sit on the panel of the Supreme Court of Canada.

A quorum of five is required in order to hold court, however most cases will seat the full panel of nine judges. The court only sits for 18 weeks out of the entire year, which means that the number of cases the court can hear is very limited. The Supreme Court of Canada hears a mere 3% of all cases appealed from the courts of appeal.  With such a limited number of cases per year, it is unlikely to make it past the provincial courts of appeal.

Leave to appeal is required in most cases at the Supreme Court of Canada.  Leave is granted if a case involves a question of public importance or raises an important issue of law.  In some circumstances, for criminal cases, leave to appeal may not be required.  There is an automatic right of appeal if one of the judges of the court of appeal has a dissenting opinion on a question of law, or if an acquittal has been set aside by the court of appeal.

Ministerial Review

Should all avenues be exhausted, there is still one possibility, an application for ministerial review under s. 696 of the Criminal Code.  This is strictly for those who have exhausted all other options.  The Minister of Justice can call for a new trial, refer to the court of appeal for hearing, or dismiss the application.  The decision of the Minister of Justice is final and cannot be appealed.

Conclusion

The appeal process is integral to the rule of law in Canada.  As an appeal moves up the court structure in Ontario through the Superior Court of Justice, the Ontario Court of Appeal and the Supreme Court of Canada, the ability to bring an appeal is more limited and the complexity increases substantially.  The Supreme Court of Canada hears a limited number of cases, and leave is rarely granted.  Should all options be exhausted, there is still the possibility of ministerial review.  While a daunting process, appealing judicial decisions is an important option available to people convicted of a criminal offence.  Due to time constraints, it is vital to explore options for appeal as soon as a conviction is entered.  An experienced Toronto criminal lawyer is the best asset available in pursuing any criminal appeal.

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This post was written by Graham_Bebbington

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