Criminal Appeals

Justice Doesn’t Always Happen the First Time

If you were convicted at trial or received a sentence that is excessively harsh, the legal process is not over. The appellate courts exist to correct errors — and errors happen. Judges make mistakes on the law, juries receive improper instructions, evidence is wrongly admitted or excluded, and sentences are imposed that fall outside the acceptable range. An appeal is your opportunity to have a higher court review what went wrong and set it right.

At Mor Fisher, we bring the meticulous legal research, analytical rigour, and persuasive advocacy that appellate work demands.

Understanding the Appeal Process

An appeal is not a re-trial. The appeal court does not hear witnesses again or re-weigh the evidence from scratch. Instead, it reviews the trial record — the transcripts, exhibits, and rulings — to determine whether a legal error occurred that affected the outcome.

Where Appeals Are Heard

• Summary conviction appeals are heard by the Superior Court of Justice. These involve less serious offences where the Crown proceeded summarily.
• Indictable offence appeals are heard by the Court of Appeal for Ontario. These involve more serious offences and are heard by a panel of three judges.
• In exceptional cases, a further appeal may be taken to the Supreme Court of Canada, but only with leave (permission) of that court.

Time Limits

Appeals must be filed within strict time limits:

• Summary conviction appeals: 30 days from the date of conviction or sentence
• Indictable appeals: 30 days from the date of conviction or sentence
• Extensions of time are possible but require a separate motion and a reasonable explanation for the delay

If you are considering an appeal, do not wait. Contact us as soon as possible after the trial to preserve your options.

Grounds for Appeal

1. Errors of Law

The most common ground for appeal. We investigate whether the trial judge:

• Misinterpreted or misapplied a legal principle (for example, the elements of the offence, the law of self-defence, or the burden of proof)
• Made an incorrect ruling on the admissibility of evidence — such as wrongly admitting a statement obtained in violation of the Charter, or excluding evidence that should have been admitted
• Failed to correctly instruct a jury on the law (in jury trials, the judge’s instructions to the jury are frequently the subject of appeals)
• Applied the wrong legal test at any stage of the proceedings
• Misapprehended the burden and standard of proof

An error of law that could have affected the verdict will generally result in a new trial being ordered.

2. Unreasonable Verdict

If the evidence at trial was so weak that no reasonable trier of fact, properly instructed, could have convicted, we can challenge the conviction as “unreasonable.” This ground requires a thorough review of the trial evidence and the trial judge’s reasons to demonstrate that the verdict cannot be supported on any reasonable view of the evidence.

3. Misapprehension of Evidence

If the trial judge fundamentally misunderstood a critical piece of evidence — for example, attributing a statement to the wrong witness, misquoting testimony, or overlooking important evidence — and that misapprehension played an essential role in the reasoning process, this can constitute a ground for appeal.

4. Ineffective Assistance of Counsel (IAC)

If your trial lawyer failed to provide competent representation, you may have grounds to set aside the conviction. Examples of ineffective assistance include:

• Failing to call a critical witness
• Failing to bring a Charter application to exclude illegally obtained evidence
• Failing to object to inadmissible evidence
• Providing incorrect legal advice that led you to make a decision you would not otherwise have made (such as waiving a preliminary inquiry or testifying)
• Conducting a fundamentally flawed cross-examination

IAC claims require evidence from outside the trial record (typically an affidavit from the appellant and sometimes from trial counsel) and are assessed on a high standard: the representation must have been both incompetent and prejudicial to the outcome.

5. Sentence Appeals

Even if the conviction stands, the sentence may be appealable if it is:

• Demonstrably unfit — clearly outside the acceptable range for the offence and the offender
• Based on an error in principle — for example, the trial judge considered an irrelevant factor, ignored a relevant one, or misapplied a sentencing principle
• Disproportionate to the gravity of the offence and the moral blameworthiness of the offender

On a successful sentence appeal, the appeal court may reduce the sentence, substitute a different type of sentence (for example, a conditional sentence instead of jail), or order a new sentencing hearing.

Bail Pending Appeal

If you have been sentenced to custody and are appealing your conviction, you may apply for bail pending appeal — release from custody while your appeal is being heard. This is not automatic and requires you to demonstrate that:

• Your appeal is not frivolous — there is an arguable ground
• You will surrender into custody as required
• Your release is not contrary to the public interest

We bring bail pending appeal applications promptly to minimize the time spent in custody during the appeal process.

Fresh Evidence Applications

In rare cases, new evidence comes to light after the trial that was not available at the time. If this evidence is credible, relevant, and could reasonably have affected the verdict, we can bring a fresh evidence application to have it admitted on appeal. This can include new witness evidence, recantations, forensic developments, or other material that has emerged since the trial.

Second Opinions and File Reviews

If you were convicted and are unsure whether you have grounds for appeal, we offer a comprehensive file review. We obtain the trial transcripts, review the evidence and the judge’s reasons, research the applicable law, and provide you with an honest assessment of your appellate options.

Related Resources

• Your Charter Rights in a Criminal Case — Charter errors at trial are among the most common grounds for appeal
• Bail Reviews and 90-Day Detention Reviews — bail pending appeal and other detention review options
• Bail Hearings & Reviews — bail pending appeal applications to secure your release during the appeal process

Think you have grounds for an appeal? Contact us promptly — strict time limits apply.