Toronto Criminal Lawyer

A criminal conviction is not necessarily the final word. The Canadian legal system provides a right of appeal in criminal cases, allowing a higher court to review the trial decision for legal errors, unreasonable verdicts, or miscarriages of justice. For individuals who believe their conviction was the result of a flawed process or an incorrect application of the law, an appeal may offer a path to a different outcome.

However, the appeal process is not a second trial. It is a distinct legal proceeding with its own rules, time limits, and standards of review. Understanding how criminal appeals work in Ontario is essential for anyone considering this option.

Where Criminal Appeals Are Heard

The court that hears a criminal appeal depends on the nature of the offence and the court that conducted the trial:

• Summary conviction offences tried in the Ontario Court of Justice — Appeals are heard by the Superior Court of Justice. The appeal is governed by Part XXVII of the Criminal Code (sections 812 to 839).
• Indictable offences tried in the Ontario Court of Justice or the Superior Court of Justice — Appeals are heard by the Court of Appeal for Ontario, located at Osgoode Hall in Toronto. These appeals are governed by Part XXI of the Criminal Code (sections 673 to 696).
• Further appeals — In some cases, a decision of the Court of Appeal can be appealed to the Supreme Court of Canada, but only with leave (permission) of that Court, and only where the case raises a question of national importance.

The distinction between summary and indictable offences matters significantly in the appeal context, not only for determining which court hears the appeal but also for the procedures and time limits that apply.

Grounds for Appealing a Conviction

An appeal is not an opportunity to simply re-argue the case. The appeal court does not rehear the evidence or substitute its view of the facts for that of the trial judge or jury. Instead, the appeal court reviews the trial proceedings for specific types of errors. The recognized grounds for appealing a conviction include:

• Error of law — The trial judge made a legal error that affected the outcome. This could include misinterpreting a section of the Criminal Code, incorrectly instructing a jury on the law, or applying the wrong legal test. Errors of law are the most common and most successful ground of appeal.
• Unreasonable verdict — The verdict is one that a properly instructed jury or judge, acting reasonably, could not have reached on the evidence. This is a high threshold — the appeal court does not reweigh the evidence but asks whether the verdict was within the range of reasonable outcomes.
• Miscarriage of justice — A broad ground that captures situations where the trial was fundamentally unfair, even if no single error of law can be identified. This may include cases where the accused was denied effective assistance of counsel, where significant new evidence has come to light, or where procedural irregularities compromised the fairness of the trial.

For summary conviction appeals, the grounds are similar but are framed slightly differently under Part XXVII. The appeal can be based on an error of law, an error of fact, or a mixed error of law and fact. Summary conviction appeals also permit a broader review of factual findings than indictable appeals in some circumstances.

Time Limits for Filing an Appeal

Time limits in criminal appeals are strict and must be taken seriously:

• Indictable offences — A notice of appeal must be filed within 30 days of the conviction or sentence (whichever is being appealed). This deadline can be extended by the Court of Appeal, but an extension is not automatic and requires a formal motion with a reasonable explanation for the delay.
• Summary conviction offences — A notice of appeal must be filed within 30 days of the conviction or sentence. Again, extensions are possible but require a motion.

The 30-day clock begins on the date of sentencing, not the date of the guilty verdict (if sentencing occurs on a later date). If you are considering an appeal, it is important to act quickly. Consulting with appellate counsel well before the deadline expires ensures that the notice of appeal is filed on time and that the grounds are properly articulated.

The Appeal Process

The procedure for a criminal appeal varies depending on the court, but the general stages are as follows:

Filing the notice of appeal — The appellant (the person appealing) files a notice of appeal setting out the grounds on which the appeal is based. This document identifies the errors alleged and the relief sought (for example, a new trial or an acquittal).

Ordering transcripts — The appeal court requires a transcript of the trial proceedings. The appellant is responsible for ordering the transcripts from the court reporter. Transcript preparation can take weeks or months, and the cost can be substantial.

Preparing the appeal record and factum — The appellant prepares a formal appeal record containing the relevant documents (indictment or information, exhibits, transcripts) and a written argument called a factum. The factum sets out the facts, the legal arguments, and the authorities (case law and statutes) relied upon. The respondent (typically the Crown) then files a responding factum.

Oral hearing — The appeal is heard by a panel of judges — typically three judges at the Court of Appeal, or a single judge for summary conviction appeals at the Superior Court. Both sides present oral arguments, and the judges may ask questions. The hearing usually lasts one to several hours, depending on the complexity of the case.

Decision — The appeal court renders its decision, either at the conclusion of the hearing or in a written judgment released at a later date. The court may dismiss the appeal, allow the appeal and order a new trial, allow the appeal and enter an acquittal, or vary the sentence.

Appealing a Sentence

In addition to appealing a conviction, it is possible to appeal only the sentence imposed. A sentence appeal argues that the sentence was unfit — either too harsh or, in the case of a Crown appeal, too lenient.

The standard of review on a sentence appeal grants significant deference to the sentencing judge. The appeal court will not intervene simply because it would have imposed a different sentence. Intervention is warranted only where the sentence is demonstrably unfit, the sentencing judge made an error in principle that affected the sentence, or the sentencing judge failed to consider a relevant factor or gave excessive weight to an irrelevant one.

Common issues on sentence appeals include failure to consider Gladue factors for Indigenous offenders, failure to apply the totality principle, errors in calculating credit for pre-sentence custody, and the imposition of sentences outside the recognized range for the offence. For more on sentencing principles, see our guide on the sentencing process in Ontario.

Bail Pending Appeal

If you have been sentenced to imprisonment and wish to appeal, you may apply for bail pending appeal — also known as judicial interim release pending appeal. This allows you to remain out of custody while the appeal is being heard.

The test for bail pending appeal, set out in section 679 of the Criminal Code, requires the applicant to establish that:

• The appeal is not frivolous (there is an arguable ground of appeal)
• The applicant will surrender into custody in accordance with the order of the court
• Detention is not necessary in the public interest

Bail pending appeal is more difficult to obtain than bail before trial, because at this stage the person has been found guilty. Courts are cautious, particularly in cases involving serious offences or violence. However, where the grounds of appeal are strong and the applicant is not a flight risk or a danger to the public, release pending appeal is often granted.

Finding Appellate Counsel

Criminal appeals are a specialized area of practice. The skills required for trial advocacy and appellate advocacy are different, and many experienced trial lawyers refer their clients to dedicated appellate counsel for the appeal stage. If you are considering an appeal, look for a lawyer with specific experience in criminal appellate work.

Legal Aid Ontario provides funding for appeals in some cases, subject to eligibility criteria. The duty counsel office at the Court of Appeal can also provide limited assistance to unrepresented appellants.

If you have been convicted of a criminal offence and believe there may be grounds for appeal, time is of the essence. The 30-day filing deadline is firm, and preparation should begin as soon as possible after sentencing. For general information about the criminal process, see our page on what happens after arrest in Ontario. To discuss whether an appeal may be appropriate in your case, contact our office for a confidential consultation.