In the Canadian criminal justice system, the pursuit of truth and fairness is a constant journey, particularly for those who have received wrongful judgments against them. Therefore, criminal law appeals become a vital avenue for those seeking a second chance, a reevaluation, or a correction of errors that may have occurred during the initial legal proceedings. This blog will explore the intricate and nuanced process of appealing criminal convictions and shed light on the unique considerations that come into play.

What Is a Criminal Appeal?

A criminal conviction can have serious, far-reaching consequences. However, if you have been accused of a crime and received a guilty verdict, the criminal conviction is not always the end of the road. All individuals have the right to ask a higher court to review the lower court’s decision-making process and sentence. As such, an accused may commence an appeal to serve as a review process to determine whether the lower court’s decision and sentencing were fair and appropriate in the circumstances. The Crown can also commence an appeal.

A criminal appeal is an intricate and complex review process. Having a skilled criminal appeals lawyer is critical for creating a sound appeal strategy.

Availability of Appeals

Some cases may have an automatic right to appeal, while others require the court’s permission (also called “leave to appeal”). Leave to appeal is generally necessary when appealing a sentence or when seeking an appeal to the Supreme Court of Canada. A right to appeal also allows defendants convicted of an indictable or summary offence to appeal a conviction based on specific grounds.

Summary Conviction Appeal

Summary conviction offences are generally accompanied by lesser consequences under the Criminal Code of Canada. In Ontario, summary conviction appeals are typically heard in the same geographical area where the offence occurred. Therefore, they are presided over by a Superior Court judge. If you wish to appeal a summary conviction appeal judge’s decision, you may appeal to the Ontario Court of Appeal, where a panel of judges will hear the appeal. However, appealing a summary conviction to the Ontario Court of Appeal requires leave of the court and may only be based on a question of law (not fact).

If the Court of Appeal declines to grant leave to appeal and refuses to hear the appeal, the appeals process is essentially concluded.

Indictable Conviction Appeal

If you have been accused and convicted of an indictable offence, such as murder, sexual assault, or robbery, an indictable conviction appeal proceeds directly to the Ontario Court of Appeal. Under the Criminal Code of Canada, both the accused and the Crown have the right to appeal a trial judge’s decision in an indictable matter. Specifically, section 675 of the Criminal Code of Canada provides that an accused may appeal a conviction based on a question of law, a question of fact, or of mixed fact and law, provided they have leave of the Court. However, section 686 of the Criminal Code of Canada states that the Ontario Court of Appeal may only allow an appeal of a conviction if the trial judge made an error of law, the verdict was unreasonable, or a miscarriage of justice occurred.

The Appeals Process in Ontario

The appeal process may look very different depending on the type of offence you were convicted of (a summary or an indictable conviction).

Time Limits for Filing an Appeal

In most cases, a criminal appeal must be filed within 30 days from the date of sentencing. Even if you have not yet retained a lawyer or been placed in custody, it is important to file a notice of appeal (or an inmate notice of appeal) as soon as possible.

If you have been sentenced to a term of imprisonment, additional flexibility on time limitations regarding an appeal may be applicable, and an appeal court may accept an appeal up to six months after a conviction.

Scheduling and Hearing an Appeal

An appeals court will typically require receipt of transcripts and other relevant documents before scheduling an appeal. The defendant and Crown Prosecutor must also file written arguments with the court to support their respective positions on appeal.

When the court hears the appeal, both parties will present oral submissions to the court to emphasize their legal justification for their argument and shed light on the specific elements of the trial or verdict being challenged on appeal. Parties are not permitted to introduce new evidence on appeal unless the new evidence was not available during the original trial.

After the court has heard the appeal, the judge or panel of judges may issue their decision when the hearing is closed. Alternatively, they may choose to release their decision at a later date, depending on the circumstances and complexity of the case at hand.

Remedies on Appeal

When you appeal a criminal matter, the appeals courts have flexibility in how they can change the outcome of a lower court’s decision by:

  • Varying the sentence;
  • Reducing or eliminating penalties such as probation or fines;
  • Acquitting the defendant;
  • Setting aside the conviction and ordering a new trial; or
  • Substituting an acquittal with a guilty verdict.

If the appeals court does not accept the appealing party’s challenge or believes the sentence is appropriate and fair, they may dismiss the appeal and allow the lower court’s decision to stand.

What You Should Know Before Commencing a Criminal Appeal

The appeal process can be incredibly complex and challenging, whether you are appealing to a Superior Court, the Court of Appeal, or the Supreme Court of Canada. Given the strict time constraints and unique considerations depending on the type of offence and judgment you are looking to appeal, it is critical to explore your options for appeal as soon as a conviction is entered.

For these reasons, working with a knowledgeable criminal defence lawyer with extensive experience at the appellate level is largely beneficial. They will be able to take a closer look at the actions taken by the trial judge, including their instructions to the jury, and examine the evidence allowed by the trial judge. Depending on the outcome of this analysis, your lawyer can help identify your options for forming an appeal.

Contact the Toronto Criminal Defence and Appellate Lawyers at Hicks Adams to Discuss Your Appeal

If you are seeking to appeal a wrongful judgment, contact the experienced criminal defence and appellate lawyers at Hicks Adams in Toronto. Our team of lawyers has extensive experience handling a variety of criminal appeals with a remarkable success rate. We regularly manage criminal appeals and position clients for the best possible outcome, such as an acquittal or a new trial. To schedule a confidential consultation with our appellate lawyers, contact us online or call us at 975-1700 (toll-free at 1-877-975-1700).