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If you’ve been convicted of a criminal offence, here are the Ontario criminal appeal rules you need to know to appeal your criminal conviction or sentencing.  Keep in mind you only have a short period of time to serve and file your appeal.

What happens if you do not agree with the judge’s decision or feel that the sentence was too high?

In certain cases you can have the judge’s decision reviewed by another judge or group of judges. If you are found guilty but think that you are innocent, if you feel the sentence was too high, or if you simply think the judge that heard your case made a mistake, you may be able to appeal.

Where does my appeal take place?

Typically your appeal will be heard in the same city or jurisdiction as your trial or plea of guilty. Usually appeals are heard at a Court called the Ontario Superior Court of Justice. Rarely, cases are required to be heard in Toronto before a Court called the Ontario Court of Appeal or in Ottawa at the Supreme Court of Canada.

Will the same judge who heard my case the first time be the appeal judge?

No, a different judge will hear the appeal. The appeal judge will be from a higher court and will decide the case without discussing the case with the first judge.

Can I win at an appeal?

Typically a lawyer will advise you about whether or not it is a good idea to appeal your case. In many cases an appeal will not be worth your time or expense. However, there are certain cases where there are very good issues that can be raised. A judge may have made a mistake in convicting you or may have given a sentence or punishment that was too harsh. If you decide to retain Aitken Robertson for your appeal, a lawyer will advise you on what he or she thinks of the chances of success for your appeal. When one of our lawyers tells you that you have a chance at winning your appeal, that means that your chances are good.

On what basis can I appeal?

You can only appeal in certain circumstances. It is not good enough for you to believe that the judge made just any kind of a mistake. Typically you can only appeal your sentence if a judge erred in law, or did not place the appropriate weight on certain sentencing principles, or if the sentence was beyond the appropriate range of sentence for the type of act that you committed. A lawyer will tell you on what grounds you can appeal.

What do I need to do to appeal my case?

In order to appeal your case you need to file a series of documents in the proper court. There is a time limit of 30 days from the time of your sentence. Once your Notice of Appeal has been filed by you or by your lawyer, the court must be given other documents. You or your lawyer must order a copy of the court’s record of everything that was said, and every document that was presented, during your original case. These records and documents are called the transcripts and exhibits. You or your lawyer must present written reasons, in a document called a factum, arguing: why your sentence should be reduced; or, why you should not have been found guilty; or, why you should be given a chance to have another trial. As well, a book containing some official documents such as the Court Information must be presented to the appeal court.

Do I serve my licence suspension or jail sentence before the appeal date?

A lawyer can ask the appeal court to pause or stop the original punishment you received. Documents that are different from the appeal documents must be filed to stop the punishment or to get your licence back quickly, pending the final decision of the appeal court.

What do I do at the appeal?

If you have a lawyer, the lawyer will present the reasons why you should win. You simply listen. The judge at the appeal does not want to hear your version of the events and will not hear from the witnesses again. The appeal is based on the documents and cases presented at the appeal (including transcripts of the trial and evidence).

How much does the appeal cost?

This will depend on the type of appeal and circumstances involved. Aitken Robertson offers reasonable rates for appeals. The lawyers at, or associated with, our office have conducted appeals at every single level of court in Canada: the Ontario Court of Justice, the Superior Court of Justice, the Court of Appeal, and the Supreme Court of Canada. For further details, please contact Aitken Robertson’s office.


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