Criminal Summary Conviction Appeal Lawyer Ontario Brampton Newmarket Milton Oshawa Hamilton Kitchener Ottawa

What is a Summary Conviction Appeal?

If you are convicted of a criminal offence in the Ontario Court of Justice, the Criminal Code gives you the right to bring an appeal of your conviction and with leave of the court your sentence before the Ontario Superior Court of Justice. The appeal is still heard by a single judge, just like your trial, but it's a judge of a higher court who can take a fresh look at the legal issues involved in your case.

An appeal is not a second trial. It only proceeds on a written transcript of the evidence and exhibits that were filed at trial. Introducing fresh evidence on an appeal would require advance permission of the appeal court, and is rarely permitted. There are no live witnesses during an appeal, just the submissions of lawyers (or yourself if you are self-represented). 

With leave (permission) of the Superior Court of Justice, you can also appeal a provincial offences appeal judgment you disagree with up to the Superior Court, which isn't a summary conviction appeal but follows a somewhat similar procedure.

Be aware the the prosecution could appeal your acquittal at trial, putting you in the position of responding to a summary conviction appeal. All the following tips for bringing an appeal apply equally to responding to one, except the prosecution takes the lead and files first.

Why Pursue a Summary Conviction Appeal?

Many very serious criminal offences are now tried in the Ontario Court of Justice. A conviction could saddle you with a criminal record for life, high monetary fines, restitution orders and forfeiture, and a significant term of imprisonment. A summary conviction appeal gives you the opportunity to seek to right injustices you believe you suffered at trial. 

How to Pursue a Summary Conviction Appeal

1. Draft a notice of appeal

You can't just argue that you don't like the trial judgment, and disagree with the findings of the trial judge. You need solid legal justification for why the trial judge was wrong, based on precedent contained in other cases and in the wording of the Criminal Code or other statutes. 

2. Serve & file a notice of appeal within prescribed time limits (usually 30 days after sentencing)

You need to give a copy of the notice of appeal to the Crown prosecutor's office, and then file it with the Superior Court of Justice in your jurisdiction, together with proof of service on the Crown. You absolutely can't be late with the notice. Better a so-so notice filed on time, than a perfect notice filed late. 

The Rules explain the technical requirements that must be contained in a notice of appeal, including explaining point by point your grounds of appeal, and remedies you are seeking (usually an acquittal, the ordering of a new trial, or a reduction in sentence). You'll also need to prove you've ordered the trial transcripts. 

3. Perfect your appeal by preparing an appeal book, written factum of legal argument, and book of authorities

Although appeals still permit oral argument, they are much more paper based than trials. You need to "perfect" your appeal by a specified date by putting together an appeal book (the Rules tell you what needs to go in it) and a written submission of the facts and law relevant to the appeal. You can also include a book of precedent cases or legislation as authorities to support your argument, though it isn't mandatory. 

4. The prosecution will respond by serving on you and filing its own written factum of legal argument and authorities

By receiving the prosecution's arguments in advance, you'll have a chance to consider how to best respond to them at the oral hearing. It is also possible to file a reply written factum in advance of the hearing, though this is rarely done unless the prosecution raises a completely new argument that you didn't anticipate at the time you filed the appeal. 

5. You'll receive a date for the argument of the appeal

Summary conviction appeals usually take one or two hours of court time, and are heard by the local Superior Court of Justice. The purpose of the oral hearing is not to read your factum at the judge (some lawyers occasionally miss this point). Rather, think of it as a way to summarize and highlight your strongest arguments, and answer questions from the judge.

The question and answer phase is key, as the judge may ask you about weaknesses in your argument for which you'll need to be prepared to provide intelligent responses. You'll also hear the prosecution's argument in response to your appeal, and then be able to briefly make rely submission to the court concerning anything new raised by the prosecution that you didn't anticipate in your original argument. The point of reply isn't to simply say your argument a second time.