This is legal information, not legal advice. It does not create a lawyer-client relationship. For advice about your situation, contact us for a consultation.
A criminal appeal asks a higher court to review a conviction, a sentence, or both, for legal error. The single most important fact about appeals in Ontario is the clock: the notice of appeal is generally due within 30 days of sentencing. An appeal is not a second trial. It is argued on the record of the first one, which is why appellate work is a distinct specialty: success depends on finding the legal error in the transcript and framing it persuasively.
Where criminal appeals go in Ontario
The route depends on how the case was prosecuted:
- Summary conviction matters are appealed to the Superior Court of Justice, where a single judge hears the appeal.
- Indictable matters are appealed to the Court of Appeal for Ontario, before a panel of three judges.
- A further appeal to the Supreme Court of Canada is possible in limited circumstances, usually with leave.
Both the Crown and the defence can appeal, though on different terms: an accused can appeal a conviction on questions of law, fact, or mixed fact and law, while Crown appeals from acquittals are restricted to questions of law.
Grounds of appeal
An appeal court can intervene in a conviction where there was an error of law, where the verdict is unreasonable or unsupported by the evidence, or where there was a miscarriage of justice. Common grounds in Ontario include misdirection on the law, the wrongful admission or exclusion of evidence, flawed credibility reasoning, problems with jury instructions, and, in some cases, ineffective assistance of trial counsel, which carries a high bar. Sentence appeals ask whether the judge made an error in principle that affected the sentence or imposed a sentence that is demonstrably unfit; appellate courts defer to trial judges, so sentence appeals succeed on error, not mere disagreement.
Fresh evidence, meaning evidence that was not before the trial court, can be admitted on appeal only under a strict test, which considers whether it could have been obtained for trial, whether it bears on a decisive issue, whether it is credible, and whether it could have affected the result.
What happens if an appeal succeeds
A successful conviction appeal usually results in either an acquittal or, more commonly, an order for a new trial. A successful sentence appeal results in a varied sentence. If the appeal is dismissed, the conviction and sentence stand, and further review is limited.
Bail pending appeal and the process
A person sentenced to custody can apply for release pending the appeal under section 679 of the Criminal Code. The court considers whether the appeal is not frivolous, whether the person will surrender into custody, and whether release is in the public interest, which weighs the strength of the appeal against the need for enforceability of judgments. We cover this on our bail pending appeal page.
The appeal itself proceeds in stages: filing the notice of appeal within the deadline, ordering the transcripts (often the longest step), perfecting the appeal with a factum and appeal book, and the oral hearing. In Ontario, a contested appeal commonly takes many months from notice to decision, driven largely by transcript preparation.
Frequently asked questions
How long do I have to file a criminal appeal in Ontario?
Generally 30 days from the date of sentencing, for both summary conviction appeals and appeals to the Court of Appeal for Ontario. The court can extend the deadline in appropriate cases, but an extension is never guaranteed, so the safest course is to get advice immediately after sentencing.
Can I be released from custody while my appeal is heard?
Often, yes. Bail pending appeal is available where the appeal is not frivolous, the person will surrender when required, and release is in the public interest. For strong appeals from less serious matters, release is commonly granted; for the most serious cases the analysis is more demanding.
Is an appeal a new trial?
No. An appeal is a review of the trial record for legal error; witnesses are not reheard and new evidence is admitted only under a strict fresh evidence test. The question is whether something went legally wrong, not simply whether a different judge might have decided differently.
What happens if I win my appeal?
Most successful conviction appeals result in an order for a new trial; some result in an acquittal, depending on the error and the state of the evidence. Successful sentence appeals result in a reduced or restructured sentence.
Can I appeal only my sentence?
Yes. A person can appeal the sentence alone, the conviction alone, or both. Sentence appeals require showing an error in principle that affected the sentence or a sentence that is demonstrably unfit, because appeal courts defer to the trial judge's discretion.
Do I need a different lawyer for my appeal?
Not always, but appeals are a distinct skill, and a fresh set of eyes on the record is often valuable, particularly where trial counsel's conduct may itself be a ground of appeal. Appellate review begins with an honest assessment of whether viable grounds exist.
Considering an appeal? Contact us
This is legal information, not legal advice. It does not create a lawyer-client relationship. For advice about your situation, contact us for a consultation.
Sewrattan Criminal Lawyers conducts criminal appeals at every level of court in Ontario. Because of the 30-day deadline, time matters: contact us for a consultation: 416-583-1510 ext. 2. Related pages: Bail Pending Appeal Applications and Bail Hearings.