Appealing a Criminal Conviction or Sentence in Ontario

Being convicted of a criminal offence is not necessarily the end of the road. If you believe your conviction was wrong or your sentence was unjust, you may have the right to appeal. The criminal appeals process in Ontario provides a mechanism for a higher court to review the decision made at trial and, in appropriate cases, to overturn the conviction, order a new trial, or reduce the sentence.

However, appeals are not automatic do-overs. The grounds for appeal are specific, the timelines are strict, and the standard the appellate court applies is different from a trial. Understanding when an appeal makes sense — and when it does not — is critical to making an informed decision about your case.

If you have been convicted and are considering an appeal, contact Mor Fisher LLP promptly. Time limits for filing an appeal are strict — generally 30 days — and the right way to handle a closing deadline is not to wait. If you cannot retain counsel within the window, file a notice of appeal yourself to preserve your rights. We explain how, and why that works, in the timelines section below.

The Right to Appeal

The right to appeal a criminal conviction or sentence is set out in section 675 of the Criminal Code of Canada (for indictable offences) and section 813 (for summary conviction offences).

For indictable offences, you have the right to appeal:

• A conviction on a question of law alone — this is an appeal “as of right,” meaning you do not need permission from the court
• A conviction on a question of fact, or mixed fact and law — this requires “leave” (permission) from the Court of Appeal
• The sentence — with leave of the Court of Appeal, unless the sentence is one fixed by law

For summary conviction offences, the appeal process is different. Summary conviction appeals are heard by the Superior Court of Justice, not the Court of Appeal. The appeal can be on a question of law, fact, or mixed fact and law.

If the summary conviction appeal is unsuccessful, a further appeal to the Court of Appeal may be available, but only on a question of law.

Where Do Appeals Go?

The level of court that hears your appeal depends on how the offence was prosecuted:

• Indictable offences — appeals go to the Ontario Court of Appeal in Toronto
• Summary conviction offences — appeals go to the Superior Court of Justice in the district where the trial took place

This distinction matters because the Court of Appeal and the Superior Court have different procedures, and the scope of review may differ.

Timelines: The 30-Day Rule

This is the single most important thing to know about criminal appeals: you have 30 days from the date of your conviction or sentence to file a notice of appeal. The same 30-day window generally applies to summary conviction appeals, indictable conviction and sentence appeals, and to seeking leave from a dismissed prior appeal. (Leave to the Supreme Court of Canada is the main exception, at 60 days.)

The deadline is strict. If you miss it, you do not file an appeal — you file a motion to extend time, which requires you to show, among other things, a continuing intention to appeal during the period in question, a reasonable explanation for the delay, and arguable merit. Extensions are discretionary and are not guaranteed. The bar is meaningfully higher than the bar for filing on time.

In practical terms: assume the clock is short, and treat day one as today.

If You Don’t Have a Lawyer Yet, File the Notice Yourself

This is the part most people get wrong, and it is the most consequential point in this article. If the 30-day window is closing and you have not retained counsel, file a notice of appeal yourself. A self-represented notice of appeal is far better than a missed deadline.

A notice of appeal is a short, standard-form document — available from the relevant court office and online. It identifies the appellant, the conviction or sentence appealed from, the court and date, and lists the grounds of appeal. Your grounds at this stage do not have to be perfect or final. General grounds — “the trial judge erred in law”, “the verdict was unreasonable”, “the sentence is demonstrably unfit” — are enough to put the notice on file. The point of filing is to stop the clock.

Once a notice is on file, retained counsel can later file an amended notice of appeal that properly articulates the grounds, requests transcripts, and sets out the relief sought. An amended notice from counsel is a routine procedural step. A motion to extend a missed limitation is not.

If you are in custody, courthouse staff and institutional staff can assist you with the inmate appeal process — this exists precisely so that a person serving a sentence is not forced to choose between filing an appeal and waiting for a lawyer’s call.

Then — and only then, once the notice is on file — turn your attention to retaining counsel. Filing the notice does not commit you to going through with the appeal. You can perfect it, narrow the grounds, or abandon it once you have proper advice on the merits. What you cannot do is resurrect a missed deadline by changing your mind later.

If you are considering an appeal, contact a lawyer immediately after your conviction or sentence. Do not wait. But if you cannot reach counsel before the deadline, file the notice anyway.

Grounds for Appealing a Conviction

An appeal is not a chance to re-argue your case from scratch. The appellate court does not re-hear the evidence or make its own findings of fact. Instead, it reviews the trial record to determine whether an error occurred that warrants intervention.

The main grounds for appealing a conviction are:

Unreasonable Verdict

You can argue that the verdict was unreasonable — meaning that no properly instructed trier of fact, acting judicially, could reasonably have reached the verdict of guilty on the evidence presented. This is a high bar. The appellate court gives significant deference to the trial judge’s findings of fact, particularly regarding credibility.

Error of Law

An error of law occurs when the trial judge misapplied the law — for example, by admitting evidence that should have been excluded, giving incorrect jury instructions, misinterpreting an element of the offence, or failing to properly apply the Charter of Rights and Freedoms. Errors of law are the most common basis for successful appeals.

Miscarriage of Justice

This is a broader ground that captures situations where the trial process was fundamentally unfair, even if no specific legal error can be identified. Miscarriages of justice are rare but can include cases involving ineffective assistance of counsel, non-disclosure of evidence by the Crown, or other circumstances that undermine confidence in the verdict.

Grounds for Appealing a Sentence

You can also appeal your sentence without challenging the conviction. The grounds for a sentence appeal include:

• The sentence is manifestly unfit — meaning it is clearly unreasonable given the offence and the offender’s circumstances
• Error in principle — the sentencing judge made a legal error, such as considering an irrelevant factor, ignoring a relevant factor, or misapplying a sentencing principle
• Failure to consider relevant factors — the judge failed to give proper weight to mitigating or aggravating circumstances

Appellate courts give significant deference to sentencing judges. A sentence will not be overturned simply because the appeal court would have imposed a different sentence. The error must be demonstrable and must have had an impact on the sentence imposed.

Understanding the difference between trial-level sentencing and appellate review is important. If your case involved a joint submission that the trial judge rejected, or if mandatory minimum provisions were applied incorrectly, these may form the basis of a sentence appeal.

The Appeal Process

Once you have filed a notice of appeal, the process unfolds as follows:

1. Ordering Transcripts

The trial transcripts — the written record of everything said during the trial — must be ordered. These form the foundation of the appeal record. Transcripts can take weeks or months to prepare.

2. Preparing the Appeal Record

The appeal record includes the transcripts, the information or indictment, any exhibits, the reasons for judgment, and other relevant documents from the trial.

3. Filing a Factum

Both the appellant (the person appealing) and the respondent (usually the Crown) file written arguments called factums. The factum sets out the legal arguments, the relevant law, and the relief sought. This is the most important document in the appeal — it is your opportunity to persuade the court that an error occurred and that intervention is warranted.

4. Oral Hearing

The appeal is argued orally before a panel of judges — typically three judges at the Court of Appeal. Each side presents their arguments, and the judges ask questions. The hearing is not a new trial — no witnesses are called, and no new evidence is generally presented.

Bail Pending Appeal

If you have been sentenced to imprisonment, you can apply for bail pending appeal under section 679 of the Criminal Code. To be released while your appeal is pending, you must show:

1. The appeal is not frivolous — there is a genuine issue to be decided
2. You will surrender into custody — you are not a flight risk
3. Your detention is not necessary in the public interest — your release will not undermine public confidence in the administration of justice

Bail pending appeal is not automatic and is generally harder to obtain than bail at the pre-trial stage. The court will consider the strength of the appeal, the seriousness of the offence, and the length of the sentence.

If bail pending appeal is granted, you will be released on conditions similar to those imposed at the pre-trial stage.

What Can the Appellate Court Do?

If the appeal is successful, the court has several options depending on the circumstances:

• Dismiss the appeal — the conviction and/or sentence stands
• Allow the appeal and order a new trial — the conviction is set aside and the case is sent back for a new trial. This is the most common remedy when errors of law are found
• Allow the appeal and enter an acquittal — the conviction is set aside and you are acquitted. This occurs when the appellate court concludes that no reasonable trier of fact could have convicted
• Vary the sentence — for sentence appeals, the court can substitute a different sentence

Fresh Evidence on Appeal

In exceptional circumstances, the appellate court may admit fresh evidence — evidence that was not presented at trial. To admit fresh evidence, the court applies the Palmer test, which requires:

1. Due diligence — the evidence could not have been obtained with reasonable diligence for use at trial
2. Relevance — the evidence is relevant to a decisive issue
3. Credibility — the evidence is reasonably capable of belief
4. Impact — the evidence, if believed, could reasonably have affected the result

Fresh evidence applications are rare and difficult to succeed on. The threshold is deliberately high to ensure the finality of trial proceedings.

When NOT to Appeal

Not every conviction should be appealed. An appeal is not appropriate when:

• You simply disagree with the verdict but no legal error occurred
• The evidence against you was strong and the verdict was reasonable, even if disappointing
• Your main complaint is about factual findings — appellate courts defer heavily to trial judges on credibility
• The potential benefit of the appeal does not justify the cost and time involved
• You were convicted after a jury trial and the jury instructions were proper — overturning a jury verdict requires a significant error

An honest assessment of your appeal prospects is essential. A good criminal defence lawyer will tell you candidly whether your appeal has a realistic chance of success.

Practical Considerations

Cost and Time

Appeals are expensive. They involve ordering transcripts, preparing detailed legal arguments, and arguing before the appellate court. The process can take a year or more from start to finish. You should understand the financial commitment before proceeding.

The Risk

In some cases, the Crown can cross-appeal your sentence. This means that if you appeal your conviction unsuccessfully, the Crown could seek an increase in your sentence. Your lawyer should advise you on this risk.

Choosing an Appeal Lawyer

Appeals require a different skill set than trial work. The appeals process involves legal research, written advocacy, and oral argument before appellate judges. Look for counsel with experience in appellate work.

Contact Mor Fisher LLP

If you have been convicted of a criminal offence and believe an error was made at trial or that your sentence is unjust, time is critical. The 30-day deadline to file a notice of appeal cannot be extended without good reason — and if you are reading this close to that deadline without having retained counsel, file a notice of appeal yourself today and call us afterwards. A self-filed notice protects your rights; a missed deadline rarely can be undone. Contact the criminal defence team at Mor Fisher LLP at 705-721-6642 or reach out online for a consultation. We would rather field one urgent call than meet you on day 31.