An appeal is a request to a higher court to review a decision made in a criminal case, such as a conviction, an acquittal, or a sentence. This guide explains, in general terms, the main appeal routes available in Ontario, the kinds of grounds an appeal can be based on, and the general time limit to start an appeal. It is general information only and does not replace legal advice about a specific case, and appeal deadlines in particular are strict, so anyone considering an appeal should speak with a lawyer as soon as possible.
What Is a Criminal Appeal?
A criminal appeal asks a higher court to review whether a legal error occurred in the court below, or, in some circumstances, whether the outcome reached was one no reasonable trier of fact could have reached on the evidence. An appeal is not a new trial and generally does not involve calling fresh evidence or re-arguing the facts from scratch; it is focused on reviewing the record of what happened in the earlier proceeding, including the reasons given by the trial judge.
Both the person convicted and, in some circumstances, the Crown can appeal, though the specific rights and routes available differ. This page focuses primarily on an appeal by a person who has been convicted or sentenced, since that is the situation most people researching this topic are interested in.
Summary Conviction Appeals
Where a case has proceeded as a summary conviction matter, an appeal generally goes to the Superior Court of Justice in Ontario. This route is sometimes called a summary conviction appeal, and it follows its own specific procedural rules, which differ in some respects from the rules that apply to appeals from indictable proceedings. Our page on summary and indictable proceedings explains the underlying distinction between these two ways a case can proceed.
Indictable Offence Appeals
Where a case has proceeded by indictment, an appeal generally goes to the Court of Appeal for Ontario. The Court of Appeal is a higher court than the Superior Court of Justice and hears appeals from indictable matters directly, following its own detailed procedural rules, including specific requirements about the materials that must be filed and the format of submissions.
Because the appeal route depends on how the underlying case proceeded, and because some offences can be prosecuted either way at the Crown's election, confirming which court has jurisdiction over a specific appeal is an important first step, and one a lawyer can quickly determine based on how the original case was conducted.
Further Appeal to the Supreme Court of Canada
Beyond the Court of Appeal for Ontario, a further appeal to the Supreme Court of Canada is generally only available with leave, meaning the Supreme Court must first agree to hear the case. Leave to appeal is granted sparingly, generally in cases that raise an issue of public or national importance or where the Supreme Court considers its involvement otherwise warranted. Most criminal appeals do not proceed beyond the Court of Appeal for Ontario, and applying for leave to the Supreme Court involves its own separate process and timelines.
Appealing Conviction, Sentence, or Both
A conviction and a sentence can each be appealed, either separately or together. Someone who accepts that they were properly found guilty may still appeal only the sentence imposed, arguing that it was unfit given the circumstances. Conversely, someone can appeal a conviction while leaving any sentence issue for later, or not at all, if the conviction appeal succeeds and there is no longer a sentence to consider. Deciding which route, or combination of routes, is appropriate depends heavily on the specific facts and legal issues in a case.
General Grounds of Appeal
Appeals are generally based on specific legal grounds rather than simple disagreement with the outcome. Common categories of grounds include an error of law made by the trial judge, such as a mistaken application of a legal test or an incorrect ruling on the admissibility of evidence; an unreasonable verdict, meaning a verdict that no properly instructed trier of fact, acting judicially, could reasonably have reached on the evidence presented; and, for a sentence appeal, that the sentence imposed was demonstrably unfit or that the judge made an error in principle that affected the sentence.
Identifying viable grounds of appeal generally requires a careful review of the trial record, including transcripts and the trial judge's reasons, which is why a lawyer's early involvement in assessing a potential appeal is so important. Not every disappointing outcome reflects a legal error that can support a successful appeal, and a lawyer can give a realistic assessment based on the specific record.
Time Limits to File a Notice of Appeal
Appeals in Ontario criminal matters are subject to strict filing deadlines. For an appeal from a conviction, sentence, or both, the generally applicable time limit is 30 days from the date the sentence is imposed, or from the relevant order being appealed, to file a notice of appeal. This 30-day period applies to both summary conviction appeals to the Superior Court of Justice and appeals to the Court of Appeal for Ontario, though the specific procedural rules and forms differ between the two routes.
Because appeal deadlines can be affected by the specific type of order being appealed and by procedural rules that are updated from time to time, anyone considering an appeal should confirm the exact deadline that applies to their situation as early as possible, ideally with a lawyer, rather than relying solely on a general figure.
Appeal deadlines are strict and generally run from the date of sentencing or the order being appealed, not from when a person eventually decides to seek legal advice. If you are considering an appeal, contact a lawyer immediately rather than waiting.
Extensions of Time
Where the 30-day deadline has already passed, it may in some circumstances be possible to seek an extension of time to file a notice of appeal, either on consent of the other party or by bringing a motion before the court. Courts generally consider factors such as the length of the delay, the reasons for it, and whether the proposed appeal has merit, when deciding whether to grant an extension. An extension is not automatic, and the safest course is always to file within the original deadline wherever possible, including filing a basic notice of appeal personally if a lawyer has not yet been retained, since a self-filed notice can generally be added to or refined later.
Bail Pending Appeal
Someone who has been sentenced to custody and wishes to appeal may be able to apply for release from custody while the appeal is pending, sometimes called bail pending appeal or judicial interim release pending appeal. This is a separate application from the appeal itself, with its own specific legal test, and is not automatically granted simply because an appeal has been filed. Our pages on bail hearings and rights at a bail hearing explain the general bail process earlier in a case, though the test for release pending an appeal is distinct from the test applied before trial.
What Happens if an Appeal Succeeds
If an appeal succeeds, the outcome depends on the specific grounds and the appellate court's decision. Possible outcomes can include the conviction being overturned and an acquittal entered, the conviction being overturned and a new trial ordered, or, on a sentence appeal, the sentence being varied. Which of these outcomes is appropriate depends entirely on the nature of the error found and the specific circumstances of the case, and is a determination made by the appellate court.
Getting Help With an Appeal
Given the strict deadlines and the technical nature of appellate procedure, anyone considering an appeal should speak with a lawyer as soon as possible after sentencing, rather than waiting to see how they feel about the outcome over time. Legal Aid Ontario may be able to assist with the cost of an appeal for people who qualify financially, and applying early can help avoid losing time that could otherwise be used to prepare the appeal properly.
Frequently Asked Questions
How long do I have to file a notice of appeal in Ontario?
The generally applicable deadline is 30 days from the date of sentencing or the order being appealed. This deadline is strict, though an extension may sometimes be sought where it has already passed. Confirm the exact deadline for a specific situation with a lawyer as soon as possible.
Which court hears my appeal?
This generally depends on whether the case proceeded by summary conviction or by indictment. Summary conviction appeals generally go to the Superior Court of Justice, while indictable appeals generally go to the Court of Appeal for Ontario.
Can I appeal just my sentence and not my conviction?
Yes, a sentence can generally be appealed separately from a conviction, and vice versa, or both can be appealed together.
Do I need new evidence to appeal?
Not necessarily. Many appeals are based on alleged legal errors in the original proceeding rather than new evidence, though there are limited circumstances in which fresh evidence may be considered on appeal.
Can I stay out of custody while my appeal is being decided?
This may be possible through a separate application for bail pending appeal, which has its own legal test distinct from bail before trial. A lawyer can advise on whether this is realistic for a specific case.
Can I appeal to the Supreme Court of Canada directly?
Generally, no. A further appeal to the Supreme Court of Canada after the Court of Appeal for Ontario is generally only available with leave, which the Supreme Court grants sparingly.
What if I've missed the 30-day deadline?
It may be possible to seek an extension of time, but this is not automatic and depends on factors such as the length of the delay and the merits of the proposed appeal. Contact a lawyer immediately rather than assuming the option is lost.