Criminal Appeal Lawyer: How to appeal a conviction and/or sentence in the Court of Appeal for Ontario, Canada.

Those convicted can appeal the court's finding of guilt, the sentence imposed, or both.

In Ontario criminal courts those who are found guilty and sentenced have 30 days to appeal the court’s ruling. Beyond the initial 30 day window the now convicted offender will need to make a special application to the court to apply for permission to appeal their conviction and/or sentence. Some people may also apply for bail while their appeal is pending.

Defendants convicted in Ontario have the option to appeal:

1. The finding of guilt (conviction) by the court;
2. The sentence that was imposed after finding the accused guilty;
3. Both the finding of guilt and the sentence.

It is important to emphasize that #1 and #2 are not mutually exclusive. Those who appeal both the conviction and the sentence are arguing to the Court of Appeal for Ontario (COA) that they should not have been found guilty but that if the COA disagrees they also argue that the sentence they received was overly harsh or undeserved.

The COA may agree with the finding of guilt but not the sentence imposed which is why both are commonly appealed and independently considered by the court.

If someone is found guilty how can they get the decision overturned on appeal?

Most appeals will be based on questions of law, not fact. This means the defendant may have grounds to believe that evidence was improperly gathered by the police, wrongly admitted or used at trial, that a jury was improperly instructed, or that some other error of law was made. Appeal cases often involve alleged breaches of their rights under the Canadian Charter of Rights and Freedoms by the police. There are also many procedural errors that can occur at trial which may provide grounds for a successful appeal.

The appeal is not a relitigation of the trial. The Court of Appeal generally will accept the findings of facts made by the trial judge. It is not a stage for everyone to take the stand and testify again. Transcripts of what was said in court will be used and arguments will typically focus on legal procedures and decisions that were made in the case both prior to and during the trial process.

The appeal lawyer representing the accused will therefore obtain the transcripts of the trial and submit a factum containing the legal arguments being used in the case. A hearing will take place where the appeal lawyer will present their arguments to the court and answer any questions from the appeal court judges before they rule on the case.

Upon re-evaluating the finding of guilt (conviction), the Court of Appeal has several options including:

1. Acquit the accused;
2. Order a new trial with new instructions to be followed by the lower court regarding evidence or procedure;
3. Uphold the conviction with perhaps commentary on the particular Charter, procedural, or other issues raised on appeal.

In Ontario, the COA has virtually unlimited power to reverse or change decisions made by the lower courts.

Appealing a sentence imposed by the lower court after finding the defendant guilty.

I agreed to plead guilty and the Crown offered me a good deal but the judge disagreed with the sentence. How can I appeal this ruling?

Other individuals looking to file an appeal may accept the finding of guilt, or may have even pled guilty originally, but received a sentence (often jail or prison) that they were not expecting. They may have agreed to plead guilty in hopes of receiving a lighter sentence, perhaps in exchange for a joint position on sentencing between the Crown and the defence, but the judge disagreed and sentenced them to something harsher than what was recommended.

When someone pleads guilty both the defence lawyer and the Crown, and often the judge themselves, will clearly explain to them that the sentence is still up to the judge despite any agreements made between the Crown and the defence. Courts will not accept guilty pleas from uninformed defendants or from those who claim to be innocent.

Even if you pled guilty while fully informed of your rights you can still appeal the sentence imposed at the COA level.

How can I appeal the sentence if I knew beforehand the judge could sentence me something beyond what the Crown was asking for?

This is normal. Criminal sentences are appealed all the time in Ontario regardless of whether the accused voluntarily pled guilty or was found guilty after a trial. Usually the contested issue is that the sentence imposed itself is improper and not legally justified.

While judges are given quite a bit of room for harsh sentencing on most offences, the sentence still must be reasonable in the circumstances and consistent with prior case law precedents. If many other courts imposed lesser sentences in similar cases, or there are decisions of the Court of Appeal or Supreme Court of Canada that contradict the sentence, this may be grounds for a successful appeal.

What types of sentences are normally appealed?

Most often the appeal relates to the length of jail or prison time imposed by the court. This can range tremendously on a case by case basis. Some people are appealing that a jail sentence was imposed at all. In other cases the defendant will be asking the appeal court to discharge them of a criminal record.

Any sentence can be appealed. The most common types of sentences appealed in Ontario courts are:

1. Prison (2 years+ custody)
2. Jail (custody of less than 2 years)
3. Conditional Sentence (house arrest and a criminal record)
4. Suspended Sentence (probation and a criminal record)
5. Fine (criminal record)

Appeals can also relate to:

1. Restitution Orders
2. Sex offender registration SOIRA orders
3. Orders of Prohibition limiting access to children, the internet, and other restrictions imposed under Section 161 (1) of the Criminal Code for child sexual offences
4. Dangerous and Long Term Offenders
5. Driving prohibitions
6. Any other lower court ancillary orders or decisions

Just because the Court of Appeal agrees with a finding of guilt by the lower court does not mean they necessarily will agree with the sentence imposed. The appeal court will evaluate the appropriateness of the sentence imposed and may disagree with the lower court. A sentence thus may be overturned and a new sentence imposed. Common reasons for re-sentencing an offender include:

1. The sentence imposed may be found in violation of the Charter;
2. The COA may find that the sentence was inappropriate or inadequate given the facts of the case and other related case precedents (from both Ontario and throughout all of Canada).

It is important to note that the re-sentencing will not always work in the defendant’s favour. The court may feel the sentence imposed is too light and impose a harsher sentence. Sometimes it is the Crown that appeals the lower court sentence if they feel it is too light.

Can the appeal be based on new or fresh evidence that was not available and/or considered at trial?

New or “fresh evidence” can be used to successfully appeal some cases. The COA has broad discretion to hear new evidence and will do so if it believes it to be both reliable and relevant. In cases where new evidence emerges that proves a person to be innocent, the court will act to exonerate the accused if the evidence is considered to be reliable. Generally, if the COA believes the new/fresh evidence may change the result of the case they will agree to hear and consider it.

There is a fairly high burden on the defendant to show that the new, fresh evidence should be admitted and that it was not possible for their lawyer to have presented it at the original trial. If the COA rules that the fresh evidence should be heard, a new trial will often be ordered.

Fresh evidence leading to a new reduced sentence is possible at the COA level.

Fresh evidence may also be introduced and considered by the COA in re-evaluating the appropriateness of the sentence imposed by the lower court. A defendant may be able to have their sentence reduced or ancillary orders quashed or amended by introducing new fresh evidence that was not available to the sentencing court at trial.

Can someone apply for bail while their appeal is pending?

Yes - it is possible to receive bail pending the appeal court decision. Bail will be granted to the defendant based on several factors including whether:

1. Their appeal is likely to be successful;
2. Their release is contrary to the public interest or poses a risk to public safety; and,
3. The accused is likely to flee or hide from the police/court process if released on bail.

The court will grant the offender bail if they believe it is appropriate to do so in consideration of all three of the above factors. These factors are quite similar to those used in a regular bail (release order) hearing. Cases involving violent crimes where the offender is considered a potential danger to the public will be more difficult to get bail pending appeal than financial or other non-violent offences.

Having a strong candidate to act as a surety upon release is extremely important.

The ability to supervise the release of the offender while their appeal is being heard is also a strong factor for the courts to consider. Defendants who present a solid bail release plan with reliable sureties will have the greatest chance of success. The courts will examine the background of the defendant and their ties to the community/Canada itself. The courts do not want to release defendants who pose a strong risk to public safety or are likely to flee the country once released to avoid punishment.

Getting bail while an appeal is pending can sometimes be particularly difficult for immigrants who may not have many strong ties to the community. They may be judged to be a high risk to flee. They may also not have any friends or family members who can act as a surety to supervise their release. In the most serious of cases, where the accused is facing a lengthy jail term, the courts will be concerned the accused will flee Canada and return to their home country.

Can decisions of the Court of Appeal for Ontario be overturned?

Yes. The Court of Appeal for Ontario can overturn their own decisions. Cases can also be overturned by the Supreme Court of Canada (SCC). A defendant looking to appeal a case at the SCC level must apply in advance for permission to have the case heard during a process known as “leave to appeal”. The right to appeal is not automatically granted at the SCC level.

When should someone who believes they have been wrongfully convicted or sentenced appeal their case?

Appellants should file their application with the Court of Appeal for Ontario as soon as possible. Appeals normally must be filed within 30 days of the finding of guilt or sentence. It can be difficult to have an appeal heard if the 30 day window has expired as it will require special permission from the court to proceed. This being said, it is possible for cases to be appealed beyond the 30 days in certain circumstances. This is particularly true in cases where new fresh evidence is discovered after the 30 day window has expired.

The Court of Appeal will not automatically reject a case based on the timeline alone, especially if an innocent person has potentially been incarcerated.

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*2023 Results: the percentage of 99% of clients avoiding a criminal record (conviction) stated on this page is based solely on Lawyer Mark Zinck's personal representation of approximately 2000 criminal defence case clients as of the year 2023. Past results are not necessarily an indication of future results.

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