Appeal routes (summary conviction vs indictable), grounds of appeal (s.686), fresh evidence (Palmer test), sentence appeals (Lacasse standard), Crown appeals, and leave to the Supreme Court of Canada — for Ontario criminal defence lawyers.
Criminal appeals in Ontario are governed by Part XXI of the Criminal Code (ss.673-696). The appeal structure depends on whether the original offence was prosecuted by summary conviction or on indictment. The Ontario Court of Appeal has jurisdiction over indictable conviction and sentence appeals; the Superior Court of Justice hears summary conviction appeals.
A Notice of Appeal must be filed within 30 days of the sentence being imposed (for both conviction and sentence appeals). Extensions of time to appeal may be granted by a single judge of the Court of Appeal where the applicant can show: an intention to appeal existed within the appeal period; the extension would cause no prejudice; and there is an arguable ground of appeal with some prospect of success.
Would a properly instructed jury, acting reasonably, have been unable to arrive at the verdict on the evidence? On a conviction appeal, the appellate court may conduct its own weighing of evidence where the jury's verdict is the product of an unreasonable assessment of credibility.
Practice note: High threshold — appellate courts are reluctant to substitute their view of the evidence for the trier of fact; strongest ground for jury verdicts where evidence is weak
The trial judge made an error of law that affected the verdict — e.g., incorrect jury charge, wrong legal test for mens rea, error in admitting/excluding evidence, jurisdictional error
Practice note: Crown may invoke the curative proviso (s.686(1)(b)(iii)) to argue that despite the error, there was no substantial wrong or miscarriage of justice and the verdict should stand
Something occurred that caused a fundamental unfairness in the proceeding; this is broader than legal error and can include serious trial counsel incompetence, new evidence of innocence, Crown misconduct, or undisclosed third-party records
Practice note: Ineffective assistance of counsel requires showing: (1) counsel's acts/omissions fell below the standard of reasonable professional judgment; and (2) a miscarriage of justice resulted (i.e., a different result was reasonably possible)
Where a Charter right was violated in the investigation or trial, the accused may seek a remedy on appeal including exclusion of evidence under s.24(2), stay of proceedings, or sentence reduction
Practice note: Charter issues must generally be raised at trial; fresh Charter applications on appeal are rare but permitted where the failure to raise the issue was not strategic and the record supports the analysis
Fresh evidence may be admitted on a criminal appeal under s.683(1) of the Criminal Code. The test is the Palmer test (Palmer v The Queen, 1980 SCC):
The evidence could not have been obtained at trial by the exercise of reasonable diligence. In innocence cases, this criterion may be relaxed where failing to do so would create a miscarriage of justice.
The evidence must be relevant in that it bears upon a decisive or potentially decisive issue in the case.
The evidence must be credible in the sense that it is reasonably capable of belief.
The evidence must be such that if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
Fresh evidence applications are brought by notice on the appeal. Where the fresh evidence involves medical or forensic expert opinion, the expert must file a report; the other party may challenge the evidence. The Court of Appeal may hear the fresh evidence itself or refer it for a new trial.
Appellate intervention in sentencing requires an error in principle, failure to consider a relevant factor, or a sentence that is demonstrably unfit (not merely that the appellate court would have sentenced differently) — Lacasse, 2015 SCC 64
Errors that justify intervention: overemphasizing one sentencing factor; mischaracterizing the nature of the offence; failing to consider Gladue factors (Indigenous offenders); failing to consider joint submission or position agreed by counsel; imposing consecutive sentences without explanation
Where the trial judge failed to properly consider Gladue factors for Indigenous offenders (as required by s.718.2(e) Criminal Code and R v Gladue, 1999 SCC), the Court of Appeal may reduce the sentence or order a new sentencing hearing with a Gladue report
An accused may apply for bail (judicial interim release) pending a sentence appeal or conviction appeal under s.679 Criminal Code; requires demonstrating the appeal is not frivolous, the accused will surrender, and detention is not necessary in the public interest
Under s.686 of the Criminal Code, a court of appeal may allow a conviction appeal on three grounds: (1) the verdict is unreasonable or cannot be supported by the evidence; (2) the judgment of the trial court is wrong on a question of law; or (3) there was a miscarriage of justice. The court may dismiss the appeal despite legal errors under the curative proviso (s.686(1)(b)(iii)) if there is no substantial wrong or miscarriage of justice.
The Palmer test requires: (1) due diligence — the evidence could not have been obtained at trial by reasonable diligence (may be relaxed in innocence cases); (2) relevance — bears on a decisive or potentially decisive issue; (3) credibility — reasonably capable of belief; and (4) effect — if believed, could reasonably be expected to have affected the result.
Summary conviction appeals from OCJ to Superior Court are generally heard within 6-12 months. Indictable conviction appeals to the Ontario Court of Appeal typically take 18-36 months from filing to hearing. Appeals involving persons in custody may receive priority scheduling. Factum filing deadlines are set out in the Criminal Appeal Rules.
The Crown may appeal an acquittal, but only on a question of law alone (s.676 Criminal Code). The Crown cannot appeal a jury acquittal on questions of fact. If the Crown's appeal succeeds, the court of appeal may order a new trial — it cannot enter a conviction directly except in narrow circumstances under s.686(4)(b)(ii).
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