Criminal appeal Lawyers in Canada

Section 675(1) covers a person who is convicted by a trial court in proceedings by indictment. That person may appeal to the court of appeal. An appeal against the conviction can be brought as of right on any ground that involves a question of law alone. An appeal on a ground that involves a question of fact, or a question of mixed law and fact, needs leave of the court of appeal or a judge of it, or the certificate of the trial judge that the case is a proper case for appeal. The section also allows an appeal on any other ground that appears to the court of appeal to be a sufficient ground, with leave.

An appeal against the sentence passed by the trial court needs leave of the court of appeal or a judge of it, unless the sentence is one fixed by law.

The Attorney General has rights of appeal too. Section 676(1) lists them. They include an appeal against an order of a trial court that stays proceedings on an indictment or quashes an indictment, and, with leave, an appeal against the sentence.

A summary conviction appeal follows a different route. In Ontario, the appeal court is the Superior Court of Justice sitting in the region, district or county or group of counties where the adjudication was made. Section 813 says the defendant may appeal to the appeal court from a conviction or order, against a sentence, or against a verdict of unfit to stand trial or not criminally responsible on account of mental disorder. Under section 839, a further appeal to the court of appeal may be taken with leave on any ground that involves a question of law alone, in the cases that section lists.

Section 678(1) says that a person who proposes to appeal to the court of appeal, or to obtain leave of that court to appeal, gives notice of appeal or notice of the application for leave to appeal in such manner and within such period as may be directed by rules of court. The Criminal Code leaves the period to the rules, so this page does not give a number of days. A lawyer can say what applies.

Section 678(2) adds that the court of appeal or a judge of it may at any time extend the time within which notice of appeal or notice of an application for leave to appeal may be given. The section does not say when an extension will be granted.

Section 686(1) sets out what the court of appeal may do on an appeal against a conviction. It may allow the appeal where it is of the opinion that the verdict should be set aside because it is unreasonable or cannot be supported by the evidence. It may also allow the appeal where the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or where on any ground there was a miscarriage of justice.

The same section lists when the court may dismiss the appeal. One case is where the appeal is not decided in the appellant's favour on any of those grounds. Another is where the court is of the opinion that a ground based on a wrong decision on a question of law might be decided in the appellant's favour, but that no substantial wrong or miscarriage of justice has occurred.

When a court of appeal allows an appeal under section 686(1)(a), section 686(2) says it shall quash the conviction and either direct a judgment or verdict to be entered, or order a new trial. That is the law's wording. It is not a forecast of what any court will do in a particular appeal.

Section 683(1) gives the court of appeal powers over the evidence where it considers it in the interests of justice. It may order the production of any writing, exhibit or other thing connected with the proceedings. It may order a witness who would have been compellable at the trial to attend and be examined. It may receive the evidence of a competent but not compellable witness, including the appellant.

An appeal against sentence is handled under section 687(1). Unless the sentence is one fixed by law, the court of appeal shall consider the fitness of the sentence appealed against. It may vary the sentence within the limits prescribed by law for the offence of which the accused was convicted, or dismiss the appeal.

Section 679(1) lets a judge of the court of appeal release an appellant from custody pending the determination of the appeal, if conditions in that subsection are met. For an appeal against conviction, one condition is that the appellant has given notice of appeal or, where leave is required, notice of the application for leave to appeal.

Under section 679(3), for an appeal against conviction, the appellant has to establish three things. The appeal or application for leave is not frivolous. The appellant will surrender into custody in accordance with the terms of the order. The appellant's detention is not necessary in the public interest. A different test applies to an appeal against sentence only, which is in section 679(4).

The Canadian Charter of Rights and Freedoms continues to matter after a conviction. Section 10 gives everyone on arrest or detention the right to retain and instruct counsel without delay and to be informed of that right. Section 11 sets out the rights of a person charged with an offence, including the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. Whether a Charter issue can be raised on an appeal depends on the case, and a lawyer can explain it.

In Ontario, every charge under the Criminal Code starts in the Ontario Court of Justice, and about 95% of charges are completed there. The Superior Court of Justice can try any indictable offence but generally tries only the most serious ones. The appeal routes are the ones described above.

Legal Aid Ontario may pay for a lawyer if the person qualifies and is charged with a crime that could mean jail on conviction, or is 12 to 17 and charged under the Youth Criminal Justice Act. Duty counsel is a lawyer at the courthouse for that day. A legal aid certificate pays a roster lawyer, one approved to take legal aid clients, for the length of the criminal case. Applications are online or by phone at 1-800-668-8258. Legal Aid Ontario can say how its services apply to an appeal.

The Law Society of Ontario keeps a public Lawyer and Paralegal Directory, where a lawyer's licence can be looked up. The Ontario lawyers on this site are listed by city. Nothing on this page ranks or recommends any of them.