Even when an accused has a strong case, a criminal trial is unpredictable and can end in an unjust verdict. Fortunately, accused individuals can appeal the outcome of their case to a higher court under certain circumstances. In Canada, there are different levels of court that form a hierarchy-type system. The court system is similar in each province. Except for Nunavut, each province has three levels of courts:
Provincial and territorial courts (considered lower courts);
Superior courts; and
The appeal process in Canada is available when an individual believes the decision of a lower court interpreted the facts or law incorrectly that affected the outcome of the case. Through an appeal, a higher court can overrule the decision of a lower court.
When an appellate court overrules a decision, it means there has been an error in the lower court’s judgement. The appeal court can remedy the error by:
Reversing the trial judge’s decision;
Ordering a new trial;
Substituting a verdict of guilt;
Agreeing with the original decision of the case and uphold the decision; or
Modifying the trial decision.
For a criminal case, an appeal can be made against a conviction, the sentence received (including a probation order), a finding of not criminally responsible due to a mental disorder or fitness to stand trial. The Crown can also appeal a judge’s decision to acquit an accused.
Right and Leave to Appeal
A right of appeal means an individual has an automatic right to appeal the trial judge’s decision without the court’s discretion. Leave to appeal allows the upper court to have discretion as to whether they will hear the appeal. Under section 675(1)(a)(ii) of the Criminal Code, leave is required for an individual convicted by indictment who is appealing their conviction based on a question of fact or mixed law and fact. If the appeal involves a question of law alone, leave to appeal is not required.
In Canada, there are indictable offences and summary offences. Indictable offences, such as murder and aggravated sex assault, are more serious and carry harsher punishments. Summary offences, such as theft under $5,000, are less serious and come with a lesser punishment. When the Crown proceeds by way of a summary offence, the accused appeals their decision to a superior court. If the defendant was convicted of an indictable offence, the court of appeal will hear the appeal.
Provincial and Territorial Courts
The different levels of court in Canada deal with separate matters. In the hierarchy of the courts, provincial and territorial courts are considered lower courts. In Ontario, the Ontario Court of Justice is considered the lower or provincial division.
Provincial and Territorial courts deal with:
Most criminal offences
When a decision from a provincial court is appealed, it either goes to the province’s superior court or court of appeal. In Ontario, appeals for summary convictions are heard by the Superior Court of Justice, and appeals for indictable convictions are heard by the Ontario Court of Appeal.
If a party disagrees with the superior court judge’s decision, they can ask the province’s appeal court to review it.
Ontario Court of Appeal
In Ontario, appeals are heard by the Court of Appeal. The Court of Appeal can either allow or deny the applicant’s appeal, and typically provides the final ruling on a legal issue. If the appeal is denied, the decision of the lower court stands. If a decision or ruling by the Court of Appeal is questioned, the applicant can apply for leave to the Supreme Court of Canada.
The Supreme Court of Canada
The Supreme Court of Canada is considered the highest appeal court in the Canadian judicial system, and it only agrees to hear cases that are important to the country or in unsettled areas of law. Once the Supreme Court of Canada makes a decision, the appeal cannot go any further. Fewer than two percent of appeals are heard by the Supreme Court, so the court of appeal is often the last avenue for individuals to appeal their case.
For an individual to appeal to the Supreme Court of Canada, an application for leave is required. However, in criminal cases, if an accused’s acquittal was set aside in the provincial court of appeal, or where one judge dissented on a question of law, there is an automatic right of appeal to the Supreme Court.
Even when an accused has exhausted all of their options through the appeal courts, section 696.1(1) of the Criminal Code allows the accused one last possibility to appeal their conviction or sentence only if there was a miscarriage of justice. An accused can apply for a ministerial review in which their case can be heard in front of the Minister of Justice. The Minister of Justice can grant the accused a new trial, refer the matter to the court of appeal for a hearing, or dismiss the application. The decision of the Minister of Justice is final and cannot be appealed.
What are Grounds for an Appeal?
An appeal court is limited in what they can do. The purpose of appealing a criminal conviction is not to retry the entire case. Therefore, appeal courts typically cannot hear new evidence. Section 686(1) of the Criminal Code outlines the powers of the Court of Appeal and the decisions they can make. An appeal court can only set aside a conviction for the following three reasons:
The verdict was unreasonable or could not be supported by the evidence;
The trial judge made an error of law; or
There was a miscarriage of justice on any grounds.
Given the evidence presented in trial, an accused’s conviction or sentence, or both, may be appealed if it was unreasonable. Challenging a conviction on these grounds only focuses on the weakness or lack of the evidence presented. For any criminal conviction, the accused must be found guilty beyond a reasonable doubt. Therefore, to successfully appeal an unreasonable verdict, the accused must persuade the appeal court that the evidence against them at trial was too weak to be found guilty beyond a reasonable doubt.
An appellate court may find a verdict unreasonable on the basis of one of the following three grounds:
Whether the overall verdict is one that a properly instructed jury who, by acting judicially, could have rendered;
When the wrongful assessment of material evidence was used in a way that could have affected the outcome; and
“Demonstrable logical incompatibility”, described by the Supreme Court as: ...if the trial judge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge (R. v. Sinclair, 2011 SCC 40,  3 S.C.R. 3, at paras. 4, 16 and 19‑21; R. v. Beaudry, 2007 SCC 5,  1 S.C.R. 190): R v RP at para 9.
Error of Law
An accused can appeal a conviction or sentence on an error of law, and the Crown can appeal an acquittal on an error of law. If an accused successfully argues an error of law occurred during their trial, their conviction will be overturned. Not every error of law is cause for reversing the decision of a trial court, however. Even if the court of appeal finds there was an error, they may still dismiss the appeal if the error was not significant.
For example, convictions may be set aside if:
Evidence was wrongfully admitted;
A finding of fact was made when there was no evidence to do so;
Evidence was assessed based on a wrong legal principle;
If an appellate court determines an accused’s conviction or sentence was unreasonable, an error of law, or that a miscarriage of justice occurred, the court of appeal can make the following decisions to remedy the error the lower court made:
Reverse the trial judge’s decision;
Order a new trial;
Substitute a verdict of guilt;
Agree with the original decision of the case and uphold the decision; or
Modify the trial decision.
Reverse the Trial Judge’s Decision
The appeal court can acquit the accused if the evidence does not support their conviction or sentence. When an accused is acquitted, they are not guilty of the charges.
Order a new Trial
If the court of appeal finds the accused’s trial was not fairly or properly conducted, the court can set aside the conviction and order a new trial. Typically, a new trial is ordered when the lower court made an error of law.
Substitute a Verdict of Guilty
In rare circumstances, the Crown can appeal an accused’s acquittal and ask the court of appeal to find the accused guilty. This can only occur when a trial by judge alone acquitted the accused. If a jury acquitted an accused, the appeal court’s powers are limited and a new trial must be ordered.
Uphold the Decision
When an appellate court finds the trial in the lower court was properly conducted, and evidence supports the accused’s conviction, the court of appeal may dismiss the appeal. The appeal court can also dismiss the appeal of an accused’s sentence if they determine the sentence fits the crime.
Modify the Trial Decision
The appeal court also has the power to change or vary the sentence. The court of appeal can either increase or lower the sentence or add or remove penalties, such as probation or a fine.
Generally, a notice of appeal has to be filed within 30 days of the defendant’s sentencing date. If the time to apply for an appeal has passed, the individual can file a motion for an order extending the time to file.
What can I Expect if an Appeal Court Accepts to Hear my Appeal?
All appeals at the Ontario Court of Appeal are heard by a panel of three judges, although some appeals may be heard in front of five judges. Once the notice of appeal has been filed, the court of appeal requires the following:
Certificate of perfection; and
Book of authorities.
Click here to learn more about how to proceed in the Ontario Court of Appeal for criminal matters.
Individuals appealing their decision can represent themselves, but the appeal process can be difficult to navigate and typically involve complex legal arguments. It is recommended to have a criminal defence lawyer to put together a persuasive argument and make sure you get the best possible outcome for your appeal. The criminal lawyers at Pyzer Criminal Lawyers have the experience necessary to vigorously fight your appeal.
Summer Student and JD Candidate
Jenessa is completing her Juris Doctor degree at the University of Ottawa where she will graduate in 2022. Originally from Kelowna, she completed her undergraduate degree at the University of British Columbia Okanagan with a major in psychology and a minor in sociology.