KNOWLEDGEABLE AND EXPERIENCED

Memberships and Affiliations

The Advocates Society AIDWYC Criminal Lawyers Association Ontario Bar Association Toronto Lawyers Association Certified as a Specialist in Criminal Law by the Law Society of Upper Canada

Criminal Appeal Lawyer Toronto

Appeal Your Criminal Case

If you need to launch an appeal of a criminal court decision or are responding to an appeal launched by the crown attorney, call Daniel Brown right away.

Daniel Brown can help you appeal any criminal offence to get your conviction or harsh sentence overturned. He can also help you suspend any ancillary orders such as a judicial suspension of your driver’s license while you await the outcome of your appeal.

More significantly, Daniel Brown has extensive experience with applications for bail pending appeal thus ensuring that you do not unnecessarily spend time in jail while you wait months or years for your appeal to be argued in the appellate courts.

Daniel Brown’s appellate practice includes summary conviction appeals to the Superior Court of Justice, indictable appeals to the Ontario Court of Appeal, and appeals to the Supreme Court of Canada. He is often sought out by other defence lawyers who feel that their clients have been unjustly convicted at trial.

Daniel is also frequently called upon by the media to provide commentary on significant Canadian appellate decisions:

Whatever your appellate needs, Daniel Brown can assist you in getting a second chance before the justice system. The law places strict time limits on the filing of most types of appeals (often 30 days or less) so you are urged to arrange an appointment with him as soon as possible after a conviction. Please continue reading below for further information on appealing a criminal conviction or sentence in Toronto, Ontario.

Frequently asked questions about criminal law appeals:

How do I appeal a criminal conviction or sentence?

This article provides legal information about criminal appeals for conviction and sentence in Toronto, Ontario. It is not intended to be used as a substitute for proper legal advice. If you are looking for specific information Crown initiated appeals, please read: How to Defend Against an Appeal Initiated by the Crown Attorney. Those looking for legal advice on the time limits or process of filing an appeal with the court should consult a criminal lawyer.

What is an appeal?

In a nutshell, an appeal is a review by a higher court to determine the correctness of what happened at the trial and whether the trial was conducted fairly. Usually, appeals are based on the judge at the trial making a mistake in how he or she applied the law to the facts of the case. However, in some circumstance, an appeal can also be used to review whether the judge properly considered the evidence put forward at trial or whether the evidence was sufficient to support a conviction. Some appeals can also be argued on the basis of poor legal representation at trial. An appeal can be brought against a conviction or sentence.

What is the difference between a conviction appeal and a sentence appeal?

A conviction appeal challenges whether the person should have been found guilty or not guilty at trial. A sentence appeal challenges the type or length of punishment the Judge imposed after a person has been found guilty. A person seeking to appeal their case may chose to appeal either the conviction or sentence or both at the same time.

What is a summary conviction appeal?

A summary conviction appeal is a review of a decision of a provincial court judge where the Crown has made the decision to proceed by way of a summary trial or the Criminal Code requires that trial proceed summarily. The Crown will often choose to proceed summarily where the case is less serious or they are seeking a lower penalty at the end of the trial (such as impaired driving or domestic assault charges). For most summary conviction cases, the maximum penalty is six months in jail (some offences have a maximum sentence of 18 months in jail).

Summary conviction appeals are brought before a single judge at the Superior Court of Justice in the jurisdiction where the trial took place. For instance, if the trial took place in Toronto, the appeal would be heard at the Superior Court of Justice in Toronto, at 361 University Avenue.

What is an indictable appeal?

For more serious matters, the Crown may choose to proceed by Indictment or the Criminal Code may require the offence proceed by way of Indictment (for instance, murder, robbery or kidnapping). In Ontario, these appeals take place at the Court of Appeal for Ontario in Toronto regardless of where in the province the trial took place. Appeals to the Ontario Court of Appeal are heard before a panel of three judges.

What are the time limits to appeal?

For both summary conviction appeals and indictable appeal you can start an appeal after you have been convicted. Appeals have strict time limits. The time limit is normally 30 days from the date on which you are sentenced. For many summary conviction matters or guilty pleas, the conviction and sentence happens on the same day. It is possible to bring an appeal outside the 30 day period, however, you have to seek special permission from the appeal court.

Is it possible to get bail during my appeal?

It is possible to get bail while your appeal is before the Court. This is called bail pending appeal. Bail pending appeal requires a separate motion to be brought before the Court hearing the appeal. The Court must be satisfied of three things:

1) There is a possibility that the appeal will be successful;

2) It is not contrary to the public interest that the person be released pending appeal (this a very significant factor for offences that result in a long jail sentence); and

3) That the person will surrender themselves on or before the date of the hearing.

Preparing a proper “bail pending appeal” application may take several weeks. Therefore, it is important to begin preparing this type of motion as soon as possible after the conviction is registered by the judge rather than waiting for the sentence to be imposed. For more information, read: Obtaining Bail Pending Appeal in Criminal Cases.

Is it possible to suspend other Orders, such as a driving prohibition, during my appeal?

It is also possible to have ancillary court orders imposed as part of the sentencing be suspended pending the determination of the appeal; for instance, the mandatory year long driving prohibition on convictions for impaired driving. Fines, restitution, forfeiture of property or probation orders can also be suspended pending appeal. Like a bail pending appeal, this requires a separate motion before the Court that will hear the appeal.

How are appeals conducted?

An appeal is not a re-trial of the case. The evidence that was heard at trial is often not in dispute. All the evidence heard by the witnesses at trial (transcripts of testimony) and any physical evidence entered at trial (exhibits) are reproduced for the appeal court. The issue on appeal is whether the judge applied the law properly and arrived at a decision he or she was entitled to make. An appeal court does not under normal circumstances hear witnesses or receive any new evidence. The appeal court will also generally not interfere with a judge’s findings of credibility (i.e. whether the trial judge believed or did not believe a witness). The court process consists of the lawyers making legal arguments (submissions) as to whether the decision of the judge at trial was correct in how he applied the law to the evidence before him.

What is a factum?

The “factum” is a fancy name for a document that briefly outlines the facts of a case and the legal arguments that are going to be made during the hearing of the appeal. Most of the work done on appeals is done outside the courtroom. The appeal court requires that a full outline of all the arguments and the law that the parties are going to rely upon be prepared in advance of the hearing and filed with the court.

Is it possible to put new evidence before the appeal court?

It is possible for the appeal court to hear new evidence on appeal (“fresh evidence”); however, the ability to put fresh evidence before the court is very limited. The appeal court can consider new evidence if it was not available at trial through the trial lawyer’s due diligence, it is significant and reliable evidence and it could have affected the verdict if it was before the trial court. Read Winning Your Appeal With Fresh Evidence for more information on the subject.

What are some of the results from a successful appeal?

a) Order a new trial:
A successful appeal can result in the judge (or judges) ordering a new trial if the appeal court is convinced that the judge at trial made a legal error or the trial was not conducted fairly. The appeal court will set aside a conviction and order a new trial before a different judge. It is then up to the Crown to determine whether or not they will re-prosecute the offence. In some cases, the Crown may decide it is no longer in the public interest to re-prosecute the case again and withdraw the charge(s) rather than re-prosecute the offence.

b) Order an acquittal:
In circumstances where the appeal court is convinced that the evidence does not support a conviction, the appeal court may set aside the conviction and order that a finding of not guilty, an acquittal, be substituted. This occurs more rarely than a new trial being ordered.

c) Vary the sentence:
If the appeal court is convinced that the sentence imposed by the trial judge was too high or the judge at trial made a legal error during the sentencing, the appeal court may lower the sentence, may order that a sentence be served in the community or may remove any ancillary orders imposed as part of the sentencing (such as weapons prohibitions, DNA orders, fines, restitution or probation).

What does it cost to appeal?

The costs to appeal will vary depending on whether it is a summary conviction appeal or an indictable appeal, the complexities of the legal issues and the length of the trial. For instance, appeals that require fresh evidence are often more expensive. There are also significant costs up front to pay for the transcripts of the trial.

Every word that is spoken in open court is recorded by a court reporter – whether it is evidence from witnesses or legal argument made by the lawyers. The appeal court requires copies of the transcripts be filed with the court to assist them in deciding the appeal.

For conviction appeals, usually the entire transcript of trial is required. In the case of sentence appeals, the court is prepared to decide the matter on less than a complete record, often supplemented by an agreed statement of facts between the defence and the Crown. This often results in less costs.

For indictable appeals, the cost of transcripts alone are $3.75 per page (for five copies) or approximately $500 – 600 for a full day of court time; thus a five day jury trial in superior court could cost $2500 to $3000 for the transcripts.

For summary conviction appeals, the transcripts are usually shorter but the cost per page is higher at $4.30 per page (for three copies).

If you, or someone you know requires assistance with a sentence appeal or conviction appeal, you should immediately contact a criminal lawyer as the clock may already be ticking on the appeal deadline. For a consultation, Daniel Brown can be reached at (416) 297-7200.