Appeals

Criminal appeal articles from Daniel Brown Law, covering appeal routes in Ontario, fresh evidence applications, bail pending appeal, and Court of Appeal procedure.

Appealing a Provincial Offences Act Conviction in Ontario

Appealing a Provincial Offences Act Conviction in Ontario

by | May 10, 2020 | Appeals

To appeal a provincial offence conviction or sentence in Ontario, whether a traffic ticket, a Highway Traffic Act charge or a regulatory or by-law offence, you must file a notice of appeal within 30 days of the decision, and you normally have to pay the fine first. Appeals from tickets go to a provincial judge of the Ontario Court of Justice. Cases started by a summons or information go to the Ontario Court of Justice or the Superior Court of Justice, depending on who tried the case.

Are you looking to hire a lawyer to appeal your Provincial Offences Act conviction or sentence in Toronto, Ontario or elsewhere in the Greater Toronto Area? This article is intended to provide general information about appealing your conviction or the sentence you received.

Follow this link for information about the criminal appeal process if you are looking to appeal your criminal conviction or overturn your criminal sentence. If you would like to speak to one of the appeal lawyers at Daniel Brown Law to get legal advice about appealing your conviction or sentence for a provincial offence, call (416) 297-7200 to schedule a consultation.

Call 416-297-7200
Which court
Deadline
30 daysAfter the decision you are appealing
Ticket appeals
Ontario Court of JusticeHeard by a provincial judge, s. 135
The fine
Pay it firstOr ask a judge to waive that, s. 111
Missed your trial?
15 daysTo apply to reopen, which is not an appeal, s. 11

How do you appeal a Provincial Offences Act conviction or sentence in Ontario?

Five steps, from the decision to the Court of Appeal. The first deadline is the one that matters most.

1. The decisionA conviction, acquittal or sentence after a trial before a justice of the peace or a provincial judge.The clock starts
2. Notice of appealFile within 30 days, with the fine paid or an application to waive it. Late? Only one extension application is allowed.30 days: ss. 85, 111, 135
3. The trial recordTicket appeals need a transcript only if the judge orders one. Summons cases need the full trial transcript.Transcripts: Rules r. 8, r. 9
4. The appeal hearingA provincial judge reviews ticket appeals. Summons cases go to the Ontario Court of Justice or the Superior Court.Appeal court: ss. 116, 135
5. Court of AppealOnly with leave, on special grounds and a question of law alone, or sentence in a summons case.Leave: ss. 131, 139

Sections of the Provincial Offences Act, R.S.O. 1990, c. P.33, and the court rules for provincial offences appeals (O. Reg. 722/94 for ticket appeals, O. Reg. 723/94 for summons cases). A ticket is a certificate of offence under Part I or a parking ticket under Part II. A summons case is started by an information under Part III.

What is a provincial offence, and what is an appeal?

Provincial offences are prosecuted like crimes, but they are not crimes, and the appeal rules are their own.

Not a crime, but still a prosecution

Provincial offences are those offences created by the Government of Ontario to regulate the behaviour of individuals and businesses in the province. They include driving offences like stunt driving, driving while suspended and careless driving under the Highway Traffic Act, failing to comply with workplace safety standards under the Occupational Health and Safety Act, making a false claim for benefits under the Workplace Safety and Insurance Act, or failing to clean up a pollutant under the Environmental Protection Act. These are not criminal offences – criminal offences are contained in the Criminal Code and other laws passed by the Federal Government. Dangerous driving, for example, is a criminal charge, while careless driving is a provincial one.

While provincial offences are not criminal offences, you will still be “prosecuted” for a provincial offence and can go to trial, be found guilty, and be sentenced. You can be given a fine, probation, and, in some cases, jail time. Jail is possible only in a case started by a summons or information: a ticket carries a fine of no more than $1,000 (s. 12). Much like a criminal case, you can also appeal a conviction or sentence under the Provincial Offences Act.

An appeal is not a new trial

If you have been found guilty of a provincial offence, you may want to appeal. An appeal is not a new trial. At an appeal, your lawyer has to explain to a judge how a legal or factual mistake was made at your trial or demonstrate why your trial was unfair (i.e. the “grounds of appeal”). You can appeal your conviction, the sentence you received, or both.

In a summons case, the appeal court can occasionally order that the appeal itself be heard as a new trial, for example where the trial record is in poor condition (s. 127).

A ticket appeal is a review

An appeal from a ticket is conducted as a review. The judge can rehear the recorded evidence, require a transcript, receive evidence from witnesses whether or not they testified at trial, and ask the justice of the peace who tried the case to report in writing (s. 136).

Paying the fine does not end your appeal

You do not give up your right of appeal just because you paid the fine or complied with an order made on conviction (s. 114). That matters, because the fine usually has to be paid before the appeal can start.

The conviction stands until a judge says otherwise

Filing a notice of appeal does not stay the conviction unless a judge orders it (s. 112). Orders that follow from the conviction stay in force unless a stay is obtained, with one important exception for driver’s licence suspensions, explained below.

Which court hears a provincial offences appeal, and how long do you have?

It turns on how the case started. A ticket always goes to a provincial judge. A summons case goes one level above whoever tried it.

Decision being appealed Where the appeal goes Time limit
A ticket (certificate of offence)Part I · POA s. 135; O. Reg. 722/94 Ontario Court of Justice, before a provincial judge File within 30 days after the decision
A parking ticketPart II · POA s. 135 Ontario Court of Justice, before a provincial judge File within 30 days after the decision
A summons case tried by a justice of the peacePart III · POA s. 116(2)(a); O. Reg. 723/94 Ontario Court of Justice, before a provincial judge Serve within 30 days; file within 5 days after service
A summons case tried by a provincial judgePart III · POA s. 116(2)(b); O. Reg. 723/94 Superior Court of Justice Serve within 30 days; file within 5 days after service
The first appeal court’s decisionPOA ss. 131, 139: leave on special grounds; O. Reg. 721/94 Court of Appeal for Ontario Serve the motion for leave within 30 days

Minor traffic charges such as speeding usually start with a ticket. A charge on which the prosecution wants to seek jail, or a fine above $1,000, has to start with a summons or information under Part III, because a ticket caps the penalty (s. 12).

Who judges the appeal?

If your case started with a ticket, your appeal is heard by a provincial judge of the Ontario Court of Justice. If it started with a summons or information, who judges an appeal depends on who judged your trial. If your trial was before a Justice of the Peace, wearing a green sash and referred to as “Your Worship”, your appeal will be heard by a judge of the Ontario Court of Justice. If your trial was before a judge, wearing a red sash and referred to as “Your Honour”, your appeal will be heard by a judge of the Superior Court of Justice.

What can the appeal court do?

It can acquit you, order a new trial, change the sentence, or leave the result alone. The prosecutor can appeal too.

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If you win a conviction appeal

Acquittal or a new trial

If you win an appeal from your conviction, the appeal judge might reverse the trial decision (i.e. you might be acquitted) or the appeal judge might order a new trial in your case. In a summons case the court can allow the appeal where the finding is unreasonable or cannot be supported by the evidence, rests on a wrong decision on a question of law, or involved a miscarriage of justice (s. 120). A new trial is held before a different justice unless the court directs otherwise.

If you win a sentence appeal

A lower sentence

If you win an appeal from your sentence, the appeal judge can impose a lower sentence. The court considers whether the sentence was fit and can vary it within the limits the law sets for the offence (s. 122). On a ticket appeal the judge can affirm, reverse or vary the decision (s. 138).

If the prosecutor appeals

You have to defend it

The prosecutor can also file an appeal if you were acquitted of a provincial offence or they can appeal the sentence you received. If this happens, you will be required to defend the appeal. If the prosecutor wins the appeal, the appeal judge can enter a conviction or order a new trial (if the prosecutor appealed your acquittal), or impose a higher or different sentence (if the prosecutor appealed your sentence).

A further appeal is the exception

Court of Appeal, with leave

In most cases, a person will only be given one opportunity to appeal their case though there may be an opportunity to ask a higher appeal court to review the appeal judge’s decision in limited cases. A judge of the Court of Appeal grants leave only where it is essential in the public interest or for the due administration of justice (ss. 131(2), 139(2)).

How do you start a provincial offences appeal, and what does it cost?

A notice of appeal, filed on time, with the fine dealt with. Everything else follows from those three things.

Round stained-glass window of an hourglass with amber sand running down, framed by burnt-orange panes

The notice of appeal

The first step in any appeal is to tell the court and the prosecutor’s office that you are appealing. This must be done by filing a notice of appeal. A notice of appeal is a form that you submit to the court that tells the court that you want to appeal and what the grounds of appeal are in your case.

For a ticket, it is Form 1, the Notice of Appeal under Section 135 of the Provincial Offences Act, filed with the court clerk. For a summons case, it is Form 1, the Notice of Appeal under Section 116 of the Provincial Offences Act, which you serve on the prosecutor and then file with proof of service.

The 30-day deadline

In order to preserve your right to appeal, you must file the notice of appeal within 30 days after the decision you are appealing. In a summons case the notice must be served on the prosecutor within those 30 days and filed within five days after service. If you were convicted on one day and sentenced on another, get advice at once rather than assume the later date.

If you do not file your notice of appeal on time, you have to ask a judge for an extension of time to appeal. A judge may allow your appeal to continue if you have a good reason for delaying your appeal. In some cases, a person or business may be found guilty without realizing they even had a trial date. The circumstances of the delay and the amount of time that has passed between the deadline date and the day the appeal notice was filed will be considered by the judge before they agree to extend the appeal deadline. Only one application to extend the time to appeal is allowed for each conviction (s. 85(2)), so it has to be done properly the first time. It can be filed together with the notice of appeal.

Paying the fine first

In most cases, in order to start the appeal process, you will first need to pay your fine. The court will not accept the notice of appeal for filing until the fine is paid in full (s. 111(1)). If you are unable to pay your fine before starting the appeal process, you can ask a judge for permission to start the process without paying the fine. The application can be filed at the same time as the notice of appeal, and the prosecutor is entitled to notice of it. If the judge agrees, you may need to enter into a “recognizance” – an agreement in which you pledge a certain amount of money and promise to follow certain conditions – to ensure you appear for your appeal. If you do not appear for your appeal, you will have to pay the amount pledged in the recognizance.

Transcripts and costs

As explained above, in most cases you need to pay your fine before you will be allowed to file your notice of appeal. If you are unable to pay your fine, you will need to ask the court’s permission to file your notice of appeal without first paying your fine.

In some cases, you will also need to order the “trial transcripts”. Transcripts are a record of everything that was said as part of your trial. Whether transcripts must be ordered in your appeal depends on how your case started. In a ticket appeal no transcript is needed unless the judge orders one. In a summons case the appellant files a clerk’s certificate about the transcript with the notice of appeal, then files the transcript itself. The side starting the appeal must order and pay for the transcripts. The appeal court can also make an order for costs.

Can you stay out of jail, or keep driving, while you appeal?

Sometimes. Release from custody needs a judge’s order. A licence suspension can be paused by notice alone.

Release from custody

POA ss. 110, 113

If you are sentenced to jail time, you can ask a judge to pause your jail sentence and release you on bail while you are waiting for your appeal to be heard. The Provincial Offences Act lets a judge order your release on conditions such as a recognizance (s. 110). It does not spell out a test, so your lawyer’s application should show that the grounds of your appeal have merit and that there is no need for you to serve the sentence before the appeal is decided. If you stay in custody and the hearing has not started within 30 days of the notice of appeal, a judge must be asked to fix a date (s. 113). For criminal cases, see bail pending appeal.

Your driver’s licence

Highway Traffic Act s. 55

If your driver’s licence was suspended following the conviction, appealing the conviction and giving the Registrar of Motor Vehicles notice of the appeal that the Registrar accepts stays the suspension until the appeal is concluded. That rule dates from a 2024 amendment. Other consequences of the conviction, such as a probation order, stay in force unless a judge stays the conviction (s. 112).

What if you were convicted because you missed your court date?

A ticket conviction entered in your absence can often be reopened. The window is 15 days.

If your prosecution started with a ticket and you were convicted without attending your hearing, you can apply to have your conviction struck out and the case reopened for a new trial. This is not an appeal – it is an opportunity to reopen your trial proceedings. However, the court will only let you reopen your case if you can show you were unable to go to your first trial through no fault of your own or that you did not receive notice of your trial date or another step in the proceeding. The same applies if, through no fault of your own, you could not attend a scheduled meeting with the prosecutor.

You only have 15 days from when you learn of your conviction to apply to have your conviction struck (s. 11(1)). The application is made on the prescribed form at the court office. The clerk decides it first and, if the clerk does not strike the conviction, sends it to a justice. If the conviction is struck out, the court gives notice of a new trial date or a meeting with the prosecutor. Parking convictions have the same 15-day window (s. 19).

If the 15 days have passed, an appeal, with an application to extend the time if needed, may still be available.

Why choose Daniel Brown Law for a provincial offences appeal?

There are many things a lawyer can do to help you appeal your conviction or sentence for a provincial offence and increase your chances of success:

A nationally recognized defence firm

Daniel Brown Law is a leading Canadian criminal defence firm. Best Law Firms ranks it for both criminal defence and appellate practice, Canadian Lawyer names it one of Canada’s top criminal law boutiques, and The Globe and Mail lists it among Canada’s best law firms.

Strong grounds, identified early

A lawyer can identify strong grounds of appeal. A lawyer can prepare the documents to start the appeal process including filing a “notice of appeal” to preserve your right to bring an appeal of your conviction and/or sentence.

Out of custody, and back on the road

A lawyer can apply for you to be released from jail on bail while you wait for your appeal to be argued at your appeal hearing. A lawyer can bring an application to stay your conviction and the orders that flow from it, such as a probation order, and can give the Registrar notice of the appeal so that a driving licence suspension that followed the conviction is stayed.

Argued properly the first time

A lawyer can represent you in your appeal at court, making the legal arguments on your behalf at the appeal hearing. It is therefore important to conduct your appeal properly the first time around. Having an experienced appeal lawyer assisting with filing documents with the court and arguing your appeal will almost certainly increase your chances for success.

Our appeals practice handles criminal appeals at every level as well.

Recognized by the profession and the public

Daniel Brown Law is named one of Canada’s Best Law Firms by The Globe and Mail, ranked among Canada’s top criminal law boutiques by Canadian Lawyer, ranked Tier 1 for criminal defence by Best Law Firms, and voted Best Law Firm by Toronto Star readers. Five of its lawyers are recognized by Best Lawyers in Canada for criminal defence.

The Globe and Mail Best Law Firms 2026, Criminal Law

Best Law Firms: Criminal Law

The Globe and Mail, 2026

Canadian Lawyer Top Criminal Law Boutique 2026-27

Top Criminal Law Boutique

Canadian Lawyer, 2026–27

Best Law Firms Canada, Criminal Defence Tier 1, 2026

Criminal Defence, Tier 1

Best Law Firms Canada, 2026

Best Lawyers in Canada 2027, Daniel Brown Law

Best Lawyers in Canada

Criminal Defence, 2027

Toronto Star Readers' Choice winner seal

Toronto Star Readers’ Choice

Best Law Firm and Best Legal Services, repeat winner

Chambers Canada 2027, Ranked in Canada, Daniel Brown Law

Crime, Nationwide

Chambers Canada, 2027

The firm and its lawyers have been repeatedly recognized for excellence in criminal defence:

Frequently asked questions about appealing a Provincial Offences Act case

Short answers. Each is explained in full above.

Provincial offences and appeals

What is a provincial offence?

An offence created by Ontario law, a regulation or a municipal by-law, such as a Highway Traffic Act charge, a workplace safety charge or an environmental charge. It is not a criminal offence, but it is prosecuted and can lead to a fine, probation and, in cases started by a summons or information, jail.

What is a provincial offence appeal?

A request to a higher court to review the conviction, acquittal or sentence. It is not a new trial: your lawyer has to show a legal or factual mistake, or that the trial was unfair.

Can I appeal a traffic ticket conviction in Ontario?

Yes. A conviction on a ticket under the Provincial Offences Act, including a Highway Traffic Act ticket, can be appealed to a provincial judge of the Ontario Court of Justice. The notice of appeal must be filed within 30 days after the decision (s. 135).

Who judges a Provincial Offences Act appeal?

A ticket appeal is heard by a provincial judge of the Ontario Court of Justice. In a case started by a summons or information, a trial before a justice of the peace is appealed to the Ontario Court of Justice, and a trial before a provincial judge is appealed to the Superior Court of Justice (s. 116(2)).

Can the prosecutor appeal a Provincial Offences Act trial?

Yes. The prosecutor can appeal an acquittal or a sentence. If it wins, the court can enter a conviction, order a new trial or impose a different sentence, so you will need to defend the appeal.

What happens if I win my appeal?

On a conviction appeal the court can acquit you or order a new trial. On a sentence appeal it can impose a lower sentence.

Deadlines, fines and costs

How do I start a provincial offences appeal?

By filing a notice of appeal that sets out your grounds. For a ticket it is filed with the court clerk; in a summons case it is served on the prosecutor and then filed with proof of service.

Is there a time limit to file an appeal?

Yes. The notice of appeal must be filed within 30 days after the decision you are appealing. In a summons case it must be served within 30 days and filed within five days after service.

Can you still file an appeal after the appeal deadline date?

Only if a judge extends the time. The judge looks at the reason for the delay and how long it has been. You can make only one application to extend the time to appeal for each conviction (s. 85(2)).

Do I have to pay my fine before I appeal?

In most cases, yes: the notice of appeal will not be accepted until the fine is paid in full. A judge can waive that requirement and order you to enter a recognizance instead (s. 111). Paying the fine does not waive your right to appeal (s. 114).

What are the costs to file an appeal?

The fine usually has to be paid first. In a summons case the appellant must also order and pay for the trial transcripts; in a ticket appeal a transcript is needed only if the judge orders one.

Jail, licences and missed court dates

Can I avoid serving my jail sentence if I file a provincial offence appeal?

You can ask a judge to release you while the appeal is pending (s. 110). Your lawyer’s application should show that the appeal has merit and that you do not need to serve the sentence first.

Is my driver’s licence suspension paused while I appeal?

If the suspension followed the conviction, yes, once you appeal the conviction and give the Registrar of Motor Vehicles notice of the appeal that the Registrar accepts. The suspension is stayed until the appeal is concluded (Highway Traffic Act s. 55).

What if I was convicted when I missed my court date?

If the case started with a ticket, you can apply within 15 days of learning of the conviction to have it struck out, if you missed the hearing through no fault of your own or never received notice. This is a reopening, not an appeal (s. 11).

Can I appeal to the Court of Appeal for Ontario?

Only with leave of a judge of the Court of Appeal, on special grounds, and on a question of law alone (or sentence, in a summons case). Leave is granted only where it is essential in the public interest or for the due administration of justice (ss. 131, 139).

Your lawyer

Why should I hire an appeal lawyer to help with my appeal?

Most people get one appeal. A lawyer identifies the grounds, files the notice of appeal on time, seeks release or a stay where it is needed, and argues the appeal, which gives you the best chance of success.

Charges we defend

Learn more about some of the charges we defend. We defend more than what we have written blog articles about.

Appealing a provincial offence? Talk to Daniel Brown Law

The 30-day clock starts with the decision. Please call us at (416) 297-7200 for a consultation about appealing your conviction for a provincial offence or the sentence you received, or contact our team online.

Phone: (416) 297-7200
Office: Daniel Brown Law, 400–103 Church St., Toronto, ON M5C 2G3

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Fresh Evidence on a Criminal Appeal: How the Palmer Test Works

Fresh Evidence on a Criminal Appeal: How the Palmer Test Works

by | Jul 11, 2013 | Appeals

Yes, you can sometimes bring new evidence to a criminal appeal, but only with the court’s permission. The Court of Appeal admits “fresh evidence” when it is in the interests of justice, applying the four-part test from Palmer v The Queen: due diligence, relevance, credibility, and whether the evidence could reasonably have affected the result. When it is admitted on a conviction appeal, the usual result is a new trial. For how appeals work generally, see our criminal appeals overview.

A criminal appeal lawyer is often required to prepare an appeal by relying solely on the evidence presented during the trial. In some cases, the appeal lawyer can present new evidence to the appeal court. This can assist in getting the court to overturn a conviction or reduce a sentence imposed at the trial level.

When new evidence is led on an appeal it is called “fresh evidence.” Courts of appeal have very broad discretion to receive fresh evidence though the Appeal courts have set a very high threshold to receive this type of evidence. Fresh evidence is not intended to be used as another attempt to litigate the facts heard at trial.

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See the Palmer test
The power
Criminal Code s. 683(1)The Court of Appeal may receive evidence where it is in the interests of justice
The test
Palmer (1980)Four criteria set by the Supreme Court of Canada
How it is raised
A motion for leaveUsually heard with the appeal itself
If it is admitted
Usually a new trialRarely an acquittal; on a sentence appeal, a varied sentence

What is the test for admitting fresh evidence on a criminal appeal?

Four criteria, one question: would it be in the interests of justice to hear it?

1. Due diligenceCould it have been led at trial? Not applied as strictly in criminal cases.Asks: why wasn’t it called?
2. RelevanceIt bears on a decisive or potentially decisive issue at trial.Asks: does it matter?
3. CredibilityIt is reasonably capable of belief.Asks: can it be believed?
4. Could have affected the resultIf believed, and taken with the trial evidence, it could reasonably be expected to have changed the outcome.Asks: would it change the verdict?

In all cases, the key question the Court must answer is whether it is in the interests of justice to admit the fresh evidence. This involves an evaluation of all the circumstances of the case. In Criminal Code terms, s. 683(1) lets the Court of Appeal, where it considers it in the interests of justice, order documents and exhibits produced, order witnesses examined, and receive evidence; the parties may examine and cross-examine those witnesses (s. 683(2)).

In determining whether an appeal court will receive fresh evidence, the court is required to balance four factors, set out by the Supreme Court of Canada in Palmer v The Queen, [1980] 1 SCR 759:

  1. The evidence should generally not be admitted if, by due diligence, it could have been led at trial. Note: this general principle will not be applied as strictly in a criminal case as in civil cases.
  2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
  3. The evidence must be credible in the sense that it is reasonably capable of belief.
  4. It 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.

The factors are not weighed equally. Due diligence is only one factor: in R v Warsing, [1998] 3 SCR 579, the Supreme Court held that if the evidence is compelling and the interests of justice require it, a failure to call it at trial should yield. The Court of Appeal for Ontario, in Truscott (Re), 2007 ONCA 575, groups the test into three questions: is the evidence admissible under the ordinary rules of evidence, is it cogent enough that it could reasonably have affected the verdict, and what explains why it was not called at trial. Evidence that fails the first two cannot be admitted; the explanation matters only once they are met.

Why the bar is high. In Palmer the Supreme Court said it would not serve the interests of justice to let a witness reopen a trial at will simply by repudiating or changing their trial evidence. Finality matters too: routinely admitting evidence that could have been called at trial would undermine the trial process itself (Truscott, para. 101).

How can fresh evidence impact a trial verdict?

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Fresh evidence can impact the reliability of a verdict in different ways – for instance, it could create doubt on a theory advanced by the Crown, undermine an essential element that the Crown has to prove or impeach the credibility of a crucial Crown witness or the reliability of his or her testimony.

For the appeals our lawyers have won, see our criminal appeals page.

Some examples from the reported cases show the range of what can qualify:

Expert evidence the jury never heard

In R v Manasseri, 2016 ONCA 703, new expert opinion about what caused the victim’s death was admitted on appeal. The Court of Appeal set aside the second-degree murder conviction and ordered a new trial.

Science that has moved on

In Truscott (Re), 2007 ONCA 575, fresh expert evidence about the time of death undermined the Crown’s case decades after the conviction. The court quashed the conviction and entered an acquittal.

A defence that was never raised

In R v Warsing, [1998] 3 SCR 579, psychiatric evidence allowed a not-criminally-responsible defence to be raised for the first time on appeal, although it failed the due diligence criterion. A new trial was ordered.

A witness who takes it back

A recantation is not enough on its own. In Palmer, statements by the principal Crown witness that his trial evidence was untrue were not admitted, and the convictions stood. Credibility is tested before the evidence is received.

How is fresh evidence put before the Court of Appeal?

Fresh evidence is never simply attached to a factum. It needs the court’s leave, on a motion, even when the Crown agrees it should be heard (R v Lévesque, 2000 SCC 47).

  1. Identify the evidence and the ground of appeal

    Fresh evidence has to connect to a ground of appeal: an unreasonable verdict, an error of law, or a miscarriage of justice (Criminal Code s. 686(1)(a)). Where the fresh evidence raises a claim that trial counsel was ineffective, the Court of Appeal’s practice direction sets a special procedure.

  2. Serve and file a notice of motion

    Under rule 27 of the Court of Appeal for Ontario’s Criminal Appeal Rules, the motion is served and filed as soon as possible. It describes the evidence, the ground it relates to, where it comes from, why it is admissible, and whether the Crown consents. If the notice of appeal did not ask for leave, a supplementary notice of appeal is filed too.

  3. Build the record

    An appeal management judge sets the form the evidence takes (often affidavits), the timetable and any cross-examinations; the Crown is entitled to cross-examine (Criminal Code s. 683(2)). The completed record is filed sealed.

  4. The court hears the motion with the appeal

    The motion is normally heard at the appeal itself. The court considers the fresh evidence against the whole trial record, then decides both the motion and the appeal (R v Stolar, [1988] 1 SCR 480).

What happens when fresh evidence is accepted on appeal?

Coloured-pencil drawing on grey paper of an old burnt-orange key beside an open cream padlock

If the appeal court accepts that the fresh evidence should have been before the trial court, it does not decide the case afresh on its own. It has three options (R v Stolar): refuse the evidence and decide the appeal; admit it as conclusive and dispose of the case; or admit evidence that could change the outcome and send the case back for a new trial.

A new trial

The usual result. Where the fresh evidence could reasonably have changed the verdict, the conviction is quashed and a new trial ordered so a judge or jury can weigh it (Criminal Code s. 686(2)(b); Stolar).

An acquittal

Rare. Where the evidence is conclusive, the court can enter an acquittal instead (s. 686(2)(a)). In Truscott, no new trial could ever be held and an acquittal was clearly the more likely result, so one was entered.

A different sentence

On a sentence appeal, fresh evidence cannot lead to a new trial. The court decides whether the sentence is fit and may vary it (s. 687(1)).

Because a successful application can end in a new trial or even an acquittal, the Crown will often fight very hard to avoid having the court consider fresh evidence on appeal.

Calling fresh evidence on a sentence appeal

The test is the same on a sentence appeal as on a conviction appeal: the Palmer criteria, including due diligence, apply to both (R v Lévesque, 2000 SCC 47). In practice, though, both the Crown and the court are often more receptive to fresh evidence on a sentence appeal. The Crown may consent, and the court may take that consent into account.

In the sentencing context, fresh evidence can present the appeal court with information that was not before the judge at the time of the trial. This is particularly so when the client is released on bail pending appeal for a period of time waiting for his appeal to be heard. Fresh evidence led on a sentence appeal can cause the appeal court to reduce the length of a sentence or eliminate the jail sentence altogether. It can also be used to modify the sentencing order in a variety of other ways.

It still has to matter. In Lévesque, the Supreme Court held that two expert reports should not have been admitted simply because they shed more light on the trial evidence: they rested on a version of the facts never established at trial.

Fresh evidence is a valuable tool to advance a client’s case before the courts of appeal. To learn more about the appeal process read: Criminal Law Appeals. If it is the Crown that has appealed, see defending a Crown appeal.

What if new evidence surfaces after every appeal is over?

Once the rights of appeal are exhausted, a person convicted of a federal offence can apply to the federal Minister of Justice for a review on the ground of a miscarriage of justice (Criminal Code s. 696.1). If satisfied there is a reasonable basis to conclude a miscarriage of justice likely occurred, the Minister may order a new trial or refer the case to the Court of Appeal to be heard as if it were an appeal (s. 696.3(3)). Steven Truscott’s acquittal came through that route.

Parliament has passed the Miscarriage of Justice Review Commission Act (David and Joyce Milgaard’s Law), S.C. 2024, c. 33, which moves these reviews to an independent commission. The Commission has been established, but as of September 2026 the new review scheme is not yet in force, so applications still go to the Minister.

Why Choose Daniel Brown Law?

Daniel Brown Law is a leading Canadian criminal defence firm. Appeals, including fresh evidence applications, are a core part of what our lawyers do.

A nationally recognized defence firm

An award-winning reputation in criminal defence and appellate advocacy: ranked among Canada’s top criminal law boutiques by Canadian Lawyer, listed for criminal defence by The Globe and Mail and Best Law Firms, and voted Best Law Firm and Best Legal Services by Toronto Star readers.

An appellate practice with a record

Our lawyers argue conviction and sentence appeals at the Court of Appeal for Ontario and the Supreme Court of Canada. See the acquittals and new trials they have won on our criminal appeals page.

A strategy for the new evidence

Our appellate lawyers can determine if your appeal is one that could be assisted by fresh evidence, and how to prepare a strategy to present this new evidence to the court to maximize your chance of success.

Recognized by the profession and the public

Daniel Brown Law is ranked among Canada’s top criminal law boutiques by Canadian Lawyer, listed by The Globe and Mail and Best Law Firms for criminal defence, and voted Best Legal Services by Toronto Star readers. Five of its lawyers are recognized by Best Lawyers in Canada for criminal defence.

The Globe and Mail Best Law Firms 2026, Criminal Law

Best Law Firms: Criminal Law

The Globe and Mail, 2026

Canadian Lawyer Top Criminal Law Boutique 2026-27

Top Criminal Law Boutique

Canadian Lawyer, 2026–27

Best Law Firms Canada, Criminal Defence Tier 1, 2026

Criminal Defence, Tier 1

Best Law Firms Canada, 2026

Best Lawyers in Canada 2027, Daniel Brown Law

Best Lawyers in Canada

Criminal Defence, 2027

Toronto Star Readers' Choice winner seal

Toronto Star Readers’ Choice

Best Law Firm and Best Legal Services, repeat winner

Chambers Canada 2027, Ranked in Canada, Daniel Brown Law

Crime, Nationwide

Chambers Canada, 2027

The firm and its lawyers have been repeatedly recognized for excellence in criminal defence:

Fresh Evidence on Appeal — Frequently Asked Questions

Short answers to the questions people ask about new evidence on a criminal appeal.

The test

Can you introduce new evidence in a criminal appeal?

Sometimes. An appeal is normally decided on the trial record, but the Court of Appeal can receive new evidence, called fresh evidence, where it is in the interests of justice (Criminal Code s. 683(1)). It needs the court’s leave on a motion, and the evidence must meet the Palmer test.

What is the Palmer test?

The four criteria from Palmer v The Queen, [1980] 1 SCR 759: the evidence generally should not be admitted if it could have been led at trial with due diligence (applied less strictly in criminal cases); it must be relevant to a decisive or potentially decisive issue; it must be reasonably capable of belief; and, if believed, it must be capable of having affected the result.

Does the evidence have to be something that was unavailable at trial?

Not always. Due diligence is only one factor. If the evidence is compelling and the interests of justice require it, the court may admit it even though it could have been called at trial (R v Warsing, [1998] 3 SCR 579). An explanation for why it was not called still matters.

Is a witness taking back their testimony enough?

Not by itself. In Palmer, the principal Crown witness’s statements that his trial evidence was untrue were not admitted. The court must be satisfied the new account is reasonably capable of belief and could have affected the result.

The process and the outcome

How is a fresh evidence application made in Ontario?

By a notice of motion for leave to introduce fresh evidence under rule 27 of the Court of Appeal for Ontario’s Criminal Appeal Rules, usually supported by affidavits. An appeal management judge sets the timetable and any cross-examinations, and the motion is normally heard with the appeal.

Can the Crown cross-examine on the fresh evidence?

Yes. The parties are entitled to examine or cross-examine witnesses in proceedings under s. 683 of the Criminal Code (s. 683(2)).

What happens if the court admits the fresh evidence?

Usually the conviction is set aside and a new trial ordered. Where the evidence is conclusive, the court can enter an acquittal instead. If the evidence does not meet the test, the motion is dismissed and the appeal is decided on the trial record (R v Stolar, [1988] 1 SCR 480).

Can fresh evidence be used on a sentence appeal?

Yes, under the same Palmer criteria (R v Lévesque, 2000 SCC 47). Information about what has happened since sentencing can support a reduced sentence or a different sentencing order.

What if new evidence appears after my appeals are finished?

You can apply to the federal Minister of Justice for a miscarriage of justice review (Criminal Code s. 696.1). A new independent Miscarriage of Justice Review Commission has been created by statute, but as of September 2026 its review scheme is not yet in force.

Related Resources

Charges we defend

Learn more about some of the charges we defend. We defend more than what we have written blog articles about.

Could fresh evidence help your appeal? Talk to Daniel Brown Law

Appeal deadlines are short, and fresh evidence takes time to gather. To arrange a consultation with Daniel Brown Law, contact our team or call our office at (416) 297-7200.

Phone: (416) 297-7200
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Bail Pending Appeal in Ontario

Bail Pending Appeal in Ontario

by | Aug 9, 2012 | Appeals, Bail & Release

Bail pending appeal is release from custody while your appeal against a conviction or a sentence waits to be heard. In Ontario a single judge of the Court of Appeal decides it, once a notice of appeal has been filed, and the burden is on the person asking to be released: they must establish that the appeal is not frivolous, that they will surrender back into custody, and that their detention is not necessary in the public interest.

One of the most important beginning steps in a criminal appeal, where the client has been given a jail sentence, is to seek bail pending appeal. This page explains the bail process for criminal appeals in Toronto and across Ontario. Please follow the links for further information about the criminal appeal process or appeals initiated by the Crown attorney.

The appeal process is lengthy. Without bail pending appeal a person can serve most or all of a sentence before the appeal is ever argued, which is why the application is normally brought within days of sentencing rather than months. Anyone who needs help with an appeal-related issue should immediately consult a criminal appeal lawyer for advice.

Daniel Brown Law brings and answers bail pending appeal applications at the Court of Appeal for Ontario, at the Superior Court of Justice on summary conviction appeals, and at the Supreme Court of Canada.

Call 416-297-7200
What you have to prove
Who decides
A single appeal judgeA panel can review the decision under s. 680
What you must show
Three thingsNot frivolous, will surrender, detention not necessary in the public interest
Notice to the Crown
3 clear daysCourt of Appeal Criminal Appeal Rules, r. 22(4)
Who carries the burden
You doThe presumption of innocence no longer applies

What do you have to prove to get bail pending appeal?

The Criminal Code sets out one test for a conviction appeal and a different, harder one for an appeal against sentence alone. Both start from the same place: the judge may order release only if the appellant establishes each part.

1. Is the appeal frivolous?You must show the appeal, or the application for leave to appeal, is not frivolous. It is a very low bar, and an appeal with no foundation at all fails here and goes no further.s. 679(3)(a)
2. Will you come back?You must show you will surrender yourself into custody in accordance with the terms of the release order. Any history of failing to appear for court, and anything that reads as a flight risk, is weighed here.s. 679(3)(b)
3. Is your detention necessary in the public interest?The criterion that is actually fought about. It has two halves: public safety, and public confidence in the administration of justice.s. 679(3)(c)

Section 679(3) of the Criminal Code, as applied in R v Oland, 2017 SCC 17. If you are appealing your sentence only, section 679(4) applies instead: leave to appeal the sentence has to be granted first, and you must show the appeal has sufficient merit that it would cause unnecessary hardship if you were held in custody. The surrender and public interest criteria are the same.

Key considerations

The burden is entirely on you

The burden is entirely on the applicant seeking bail. He or she no longer benefits from the presumption of innocence. A conviction has been entered, and the Criminal Code allows release only where the appellant establishes every part of the test.

A notice of appeal comes first

Before an appeal bail can be sought, a notice of appeal must be filed with the court. The notice of appeal sets out the basic reasons for appeal and is required to commence the appeal process. In Ontario a convicted person files it within 30 days after the day the sentence is imposed.

The grounds of appeal do a great deal of the work

The Court places significant emphasis on being able to establish that there is an arguable ground of appeal; i.e. that there is some chance that the appeal will be successful. It is very important that any bail application fully set out the proposed grounds of appeal. Where the Crown raises public confidence, the judge looks past the bare “not frivolous” threshold at whether the grounds clearly surpass it.

Surrender is a term of every order

Every bail pending appeal has a term that the client must surrender to the jail from where he or she was released. The Criminal Code requires a surrender condition in every release order pending appeal, and the order fixes a surrender date, normally shortly before the appeal is argued. That date can be extended on application, but failing to surrender is deemed to be an abandonment of the appeal.

Release is not the only thing that can be paused

Pending an appeal the Court of Appeal, or a judge of it, can also suspend a fine, an order of forfeiture, a restitution order, a victim surcharge, a probation order or a conditional sentence order where that is in the interests of justice, and a judge can stay a driving prohibition. See the criminal appeal process.

What does “the public interest” actually mean?

This is the criterion most appeal bail hearings turn on. The Supreme Court of Canada settled how it works in R v Oland: it has two components, and the second is a balance between two things the public cares about at the same time.

Mosaic tile artwork of a level two-pan balance scale, one pan picked out in burnt orange

Public safety

Asks: would releasing you put anyone at risk?

The first component. It essentially tracks the familiar question at a bail hearing before trial: is there a substantial likelihood that you would commit an offence or interfere with the administration of justice if you were released? Where there is no appreciable risk, this part is answered quickly, but residual concerns that fall short of justifying detention on their own still count in the balance below.

Enforceability

Asks: should the judgment be obeyed right now?

Society expects a court's judgment to be enforced when it is made. The seriousness of the crime drives this side of the balance — its gravity, the circumstances in which it was committed, and the length of imprisonment you are facing. Lingering flight or safety concerns strengthen it; the absence of them weakens it.

Reviewability

Asks: is the appeal worth waiting for?

Our justice system is not infallible, and a person who challenges the legality of a conviction should not have to serve all or most of the sentence only to learn on appeal that the conviction was unlawful. The strength of the grounds of appeal is central here. The judge looks at whether the grounds are legally plausible and founded in the record, not at whether they would virtually guarantee a new trial or an acquittal — demanding that much is an error of law.

The reasonable member of the public

Asks: whose confidence is being measured?

Public confidence is measured through the eyes of a person who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society's fundamental values. It is not uninformed public opinion, and it is not the reaction to a headline.

R v Oland, 2017 SCC 17, following R v Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.). Also relevant to this factor is the issue of enforceability of court orders versus the right of the accused to review the correctness of the decision at trial. There is no formula: the balance is qualitative and contextual. A serious offence and a long sentence raise the enforceability interest — but where all or a significant part of that sentence would be served before the appeal could be decided, bail becomes more important, not less, if the right of review is to mean anything. A good surety plan can offset public interest concerns.

Which court decides whether you are released?

The route depends on how you were tried and what you are appealing. The test changes with it.

Your appeal Who decides release What you must establish
Conviction appeal, indictableCourt of Appeal for Ontario A single judge of the Court of Appeal, once the notice of appeal or the leave application is filed The appeal is not frivolous; you will surrender; your detention is not necessary in the public interest s. 679(3)
Sentence appeal onlyCourt of Appeal for Ontario A single judge — but the motion for leave to appeal sentence is heard and decided first The appeal has sufficient merit that detention would cause unnecessary hardship; you will surrender; your detention is not necessary in the public interest s. 679(4)
Summary conviction appealSuperior Court of Justice The summary conviction appeal court hearing the appeal You remain in custody unless that court makes a release order, which must include a surrender condition s. 816
Appeal or leave to appeal to the Supreme Court of CanadaNotice filed and served first A single judge of the Court of Appeal The same three-part test as a conviction appeal, including in summary conviction matters s. 679(1)(c), (3), (8)
After a new trial is orderedThe conviction has been set aside A judge of the Court of Appeal, exercising a bail court’s powers Ordinary bail rules apply, as though you were charged with the offence for the first time s. 679(7.1)

A further appeal from the summary conviction appeal court to the Court of Appeal needs leave and must raise a question of law alone; on that appeal sections 673 to 689 apply, so release under section 679 is available there too. A reference directed by the Minister of Justice is treated like a conviction appeal. Where a driving prohibition is under appeal, a judge of the court appealed to can stay it on conditions.

How does a bail pending appeal application work?

It often takes a couple of weeks on average, sometimes longer, to prepare materials good enough to maximise the chances of release. The clock that matters is the one that starts at sentencing.

Mosaic tile artwork of an hourglass with burnt-orange sand running through it

  1. Retain appeal counsel, ideally before you are sentenced

    Given the time required to properly assemble appeal bail materials, it is often suggested to retain an appeal lawyer in advance of the sentencing hearing to commence work on the bail application where the imposition of a jail sentence is likely. In that case the application can often be filed with the Court in advance of the sentencing hearing so that the bail hearing can be argued the day following sentencing. Done properly, it is not uncommon to spend less than a single day in jail before being released on bail pending appeal.

  2. File the notice of appeal

    Nothing can be sought until the appeal exists. The notice sets out the basic grounds, and in Ontario a convicted person files it within 30 days after the day the sentence is imposed. A judge can extend that time, but an extension is never guaranteed. On a sentence-only appeal the motion for leave to appeal is brought at the same time and decided first.

  3. Build the application record

    The record contains the notice of application, the notice of appeal, the information or indictment, any release orders made earlier in the case, the supporting affidavits and a draft release order for the judge to sign.

  4. Prepare the affidavits and the release plan

    The affidavits set out the particulars of the conviction and sentence, your bail history, your date of birth, where you have lived for the past three years and where you would live if released, your employment, your criminal record, the proposed sureties and the amounts they would be liable for, and your agreements to surrender, to comply with every condition and to pursue the appeal diligently. On a sentence appeal they must also explain the unnecessary hardship that detention would cause.

  5. Serve the Crown three clear days before the hearing

    The Crown states its position by noon the day before. A judge can abridge that notice period where the Crown consents. Both sides attend the argument, and either may cross-examine on the other’s affidavits if a judge directs it.

  6. The hearing, and the order

    If the judge does not refuse the application, the judge must make a release order, with a surrender condition and the standard appeal conditions: notify the court and the Crown of any change of address or any new charge within 24 hours, comply with every condition, and pursue the appeal with due diligence. Once you comply with the order, the institution holding you must release you immediately.

What happens if a judge refuses bail pending appeal?

A refusal by a single judge is not always the end of it. There are two routes, and they do different things.

Court sketch of robed defence counsel before a panel of judges in a historic courtroom

A review by a panel

Asks: did the single judge go wrong?

The Chief Justice or Acting Chief Justice of the Court of Appeal can direct that the decision be reviewed by the court, which in practice means a panel of three judges. The panel defers to the judge's findings of fact unless there is a palpable and overriding error, but it can substitute its own decision where the judge made an error of law or principle that was material to the outcome, or where the decision was clearly unwarranted. The Chief Justice directs a review where either of those is arguable. On consent of the parties a single judge of the court can conduct it.

An expedited appeal

Asks: how soon can the appeal itself be heard?

Where release is refused, or a release order is cancelled, a judge may give whatever directions are necessary to expedite the hearing of the appeal. Where much of the sentence would otherwise be served before the appeal could be decided, that is an imperfect but real way of keeping the right of review meaningful.

Sections 680 and 679(10) of the Criminal Code; R v Oland, 2017 SCC 17, at paragraphs 61 and 64. An application for a section 680 direction starts with a notice of application and a case management conference with the Chief Justice. Section 680 was last touched by the Bail and Sentencing Reform Act (2026, c. 11), which only updated its cross-references; the test for release under section 679 was not changed by that Act or by the 2026 reforms that followed it.

Why choose Daniel Brown Law for a bail pending appeal?

Appeal bail is a specialised hearing in a court with its own rules, its own record and its own judges.

A nationally recognized defence firm

What it means for you

Daniel Brown Law is a leading Canadian criminal defence firm, recognized for criminal defence and appellate practice by Canadian Lawyer, The Globe and Mail, Best Law Firms and Toronto Star readers. You are retaining a firm with that record behind it rather than a single lawyer, and the appeal is staffed by whoever on our team is best placed to argue it.

An appellate practice, not an afterthought

What it means for you

Our lawyers argue conviction and sentence appeals at the Court of Appeal for Ontario and at the Supreme Court of Canada. The merits of an appeal have to be articulated properly at the bail stage, and the lawyer who will argue the appeal is usually the one best placed to do it.

We can start before the sentence lands

What it means for you

Where a jail sentence is a realistic outcome, we prepare the bail record while the sentencing is still ahead of us, so the application can be argued the day after. That is the difference between a night in custody and several months of it.

Release plans built to answer the real objection

What it means for you

A good surety plan can make the difference between being released and being detained. We build the plan around whatever the Crown is going to say — the seriousness of the offence, a flight concern, a record — and put it in front of the judge in a form the court can approve on the day.

Recognized by the profession and the public

Daniel Brown Law is ranked among Canada's top criminal law boutiques by Canadian Lawyer, listed by The Globe and Mail and Best Law Firms for criminal defence, and voted Best Legal Services by Toronto Star readers. Five of its lawyers are recognized by Best Lawyers in Canada for criminal defence.

The Globe and Mail Best Law Firms 2026, Criminal Law

Best Law Firms: Criminal Law

The Globe and Mail, 2026

Canadian Lawyer Top Criminal Law Boutique 2026-27

Top Criminal Law Boutique

Canadian Lawyer, 2026–27

Best Law Firms Canada, Criminal Defence Tier 1, 2026

Criminal Defence, Tier 1

Best Law Firms Canada, 2026

Best Lawyers in Canada 2027, Daniel Brown Law

Best Lawyers in Canada

Criminal Defence, 2027

Toronto Star Readers' Choice winner seal

Toronto Star Readers’ Choice

Best Law Firm and Best Legal Services, repeat winner

Chambers Canada 2027, Ranked in Canada, Daniel Brown Law

Crime, Nationwide

Chambers Canada, 2027

The firm and its lawyers have been repeatedly recognized for excellence in criminal defence:

Frequently asked questions about bail pending appeal in criminal cases

The answers from our original article, corrected to the current law and grouped by topic.

The basics

What is bail pending appeal?

Obtaining bail pending appeal secures the client's release from custody while his or her appeal is litigated before the Appeal Court. The appeal process is lengthy, so failure to obtain bail pending appeal can mean waiting months or even years in jail prior to the appeal being heard.

Can you get bail after you have already been convicted and sentenced?

Yes. Bail pending appeal exists precisely for that situation. It is a different thing from bail before trial: the conviction stands unless and until the appeal succeeds, the presumption of innocence no longer applies, and the burden of justifying release is on you rather than on the Crown. What you have to show is set out in section 679 of the Criminal Code.

What must be done before an appeal bail is sought?

Before an appeal bail can be sought, a notice of appeal must be filed with the court. The notice of appeal sets out the basic reasons for appeal and is required to commence the appeal process. In Ontario a convicted person files it within 30 days after the day the sentence is imposed. If you are appealing your sentence only, you also need leave to appeal that sentence, and the motion for leave is heard and decided before the release application.

Does bail pending appeal apply to summary conviction appeals?

The mechanism is different. A summary conviction appeal goes to the Superior Court of Justice, and the Criminal Code says that an appellant who is in custody stays in custody unless that court makes a release order, which must include a condition that the person surrender back into custody. Once the order is made and complied with, the institution has to release the person immediately. If the case goes further — to the Court of Appeal with leave on a question of law alone, or to the Supreme Court of Canada — section 679 applies again.

How the hearing works

How quickly can an appeal bail be heard by the judge?

Once the notice of appeal is filed, a bail application can be brought before the appeal court on providing three clear days notice to the Crown Attorney, unless the Crown consents to a shorter period and a judge permits it. That said, it often takes a couple of weeks on average, sometimes longer, to prepare proper materials to maximize the chances of obtaining bail.

Given the time required to properly assemble appeal bail materials, it is often suggested to retain an appeal lawyer in advance of the sentencing hearing to commence work on the bail application where the imposition of a jail sentence is likely. In this case, a bail pending appeal application can often be filed with the Court in advance of the sentencing hearing so that the bail hearing can be argued the day following sentencing. Done properly, it is not uncommon to spend less than a single day in jail before being released on bail pending appeal.

What is the difference between an appeal bail hearing and a bail hearing before trial?

Unlike bail at trial, the sureties on bail pending appeal rarely testify in court. The surety information, including the plan of release and proposed bond, is set out in a sworn affidavit. It is very important that the surety affidavits are well prepared and set out both the plan of release and the client's track record on previous release orders, including bail while at trial. A good surety plan can make the difference between being released and being detained.

Either side can still ask to cross-examine on the affidavits, in the manner a judge directs, and both sides attend the argument of the application.

Who decides whether to release a person on bail pending appeal?

The decision to release a person on an appeal bail is made by a single judge from the Appeal Court. This judge may or may not continue as the judge on the actual appeal hearing after the bail hearing stage is completed. If the application is refused, the Chief Justice can direct that the decision be reviewed by the court, normally a panel of three judges.

Can a surety with a criminal record still be approved?

It became harder in 2026. Under changes made by the Bail and Sentencing Reform Act, a court must not name a person as a surety if that person was convicted of an indictable offence within the previous ten years, unless the court is satisfied that no other suitable surety is available and that naming them is in the interests of justice — and if it does, it has to put its reasons on the record. A release order pending appeal is a release order under section 515, so this rule applies to appeal bail as well. It is worth identifying a second surety early.

The test

What factors will a judge consider at an appeal bail hearing?

The key to obtaining bail on appeal is well prepared bail application materials. The burden is entirely on the applicant seeking bail. He or she no longer benefits from the presumption of innocence. The applicant must meet a three-part test: (a) the appeal is not frivolous; (b) he will surrender himself into custody in accordance with the terms of the release order; and, (c) his detention is not necessary in the public interest.

The Court places significant emphasis on being able to establish that there is an arguable ground of appeal; i.e. that there is some chance that the appeal will be successful. It is very important that any bail application fully set out the proposed grounds of appeal. The “not frivolous” standard itself is a very low bar; where the Crown puts public confidence in issue, the judge takes a closer look at whether the grounds clearly surpass it.

Every bail pending appeal has a term that the client must surrender to the jail from where he or she was released on the day before the appeal hearing. The Court must be satisfied that the accused will surrender as required. The Court will generally consider any prior charges of failure to appear for court or whether the person is generally a flight risk.

Finally, the Court will consider the public interest. This factor considers such issues as the seriousness of the offence and the person's level of risk to commit further offences. Also relevant to this factor is the issue of enforceability of court orders versus the right of the accused to review the correctness of the decision at trial. If a long sentence is imposed, the Court may consider it not to be in the public interest to grant bail. A good surety plan can offset public interest concerns.

The Supreme Court of Canada added an important qualification in R v Oland: where all or a significant part of the sentence would be served before the appeal could be heard, bail takes on greater significance rather than less, because otherwise the right to have the conviction reviewed becomes meaningless. And the balance is not resolved by a formula — it is qualitative and contextual, measured through the eyes of a reasonable member of the public who is thoughtful, dispassionate and informed of the circumstances of the case.

Is the test different if I am only appealing my sentence?

Yes. Section 679(4) of the Criminal Code applies instead of section 679(3), and it has an extra requirement at the front: leave to appeal the sentence must already have been granted. You then have to establish that the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if you were detained in custody, that you will surrender into custody as required, and that your detention is not necessary in the public interest. The supporting affidavit has to spell out what that unnecessary hardship would be.

If things go wrong

Can you appeal a decision refusing bail pending appeal?

Not by way of a fresh appeal, but the Criminal Code provides a review. On the direction of the Chief Justice or Acting Chief Justice of the Court of Appeal, the decision can be reviewed by the court, which can vary it or substitute the decision that should have been made. The review panel defers to the judge's findings of fact unless there is a palpable and overriding error; it can intervene where the judge made a material error of law or principle, or where the decision was clearly unwarranted. If release is refused, a judge can also give directions to expedite the hearing of the appeal itself.

What happens if you do not surrender on time?

Every release order pending appeal requires you to surrender into custody in accordance with its terms, and the standard Court of Appeal order records your acknowledgment that failing to do so is deemed to be an abandonment of the appeal. The order can be varied to extend the surrender date, but the court will want evidence that you have been complying with your conditions, that your sureties are willing to continue, and that the appeal is being moved along. Breaching any other condition can lead to the order being revoked and to a return to custody.

Should my trial lawyer conduct the bail pending appeal hearing?

It is very important to properly articulate the merits of the appeal at the bail hearing stage. An experienced appeal lawyer is often in the best position to assist the Court in understanding the arguments that may lead to a conviction being overturned. Failure to convince the Court of the merits of the appeal can result in the bail being denied. It also helps to have a lawyer familiar with the procedures and judges at the appeal court to best present the client's case for bail pending appeal. Therefore, retaining a trial lawyer to address an appeal bail may negatively impact the client's chances of success on that hearing.

Charges we defend

Learn more about some of the charges we defend. We defend more than what we have written blog articles about.

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Facing a jail sentence, or already in custody?

A client who is granted bail pending appeal is in a much better position to assist his or her lawyer in presenting the case to the court. Hiring an experienced appeal lawyer is essential to ensure the best outcome at this critical stage of the appeal proceeding. To discuss a criminal appeal issue contact Daniel Brown Law at 416-297-7200 for a confidential consultation. We appear at the Court of Appeal for Ontario, at the Superior Court of Justice and in courthouses across the province.

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Defending a Crown Appeal: Can the Crown Appeal a Not Guilty Verdict?

Defending a Crown Appeal: Can the Crown Appeal a Not Guilty Verdict?

by | Jun 26, 2012 | Appeals

Yes, the Crown can appeal a not guilty verdict in Ontario, but only in limited circumstances. After a trial on indictment it can appeal an acquittal only on a question of law alone, and it must show that the trial judge’s error might reasonably be thought to have had a material bearing on the acquittal. It can also appeal a sentence, with the Court of Appeal’s leave. The Crown has 30 days to serve its notice of appeal, and your acquittal or sentence stands unless the appeal succeeds.

This article provides legal information about defending a criminal appeal initiated by the Crown Attorney in Ontario of either an acquittal or sentence. It is not intended to be used as a substitute for proper legal advice. Those looking for legal advice on the time limits or process of filing an appeal with the court should consult a criminal lawyer. Call Daniel Brown Law to discuss your criminal appeal matter at (416) 297-7200.

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What the Crown must prove
The right to appeal
Criminal Code s. 676Acquittals, stays and sentences, in limited circumstances
An acquittal
Law aloneAfter a trial on indictment, s. 676(1)(a)
A sentence
With leaveOnly if it is demonstrably unfit or flawed in principle
The deadline
30 daysFor the Crown to serve its notice of appeal on you

Can the Crown appeal a not guilty verdict in Ontario?

The Crown (Attorney General) has the right to appeal both an acquittal (not guilty verdict) and sentence, in the circumstances the Criminal Code allows. The Attorney General only appeals a limited number of cases each year and each potential appeal is subject to a review process that is triggered by a request from the local Crown Attorney who prosecuted the case. Under Ontario’s Crown Prosecution Manual, a Crown appeal to the Court of Appeal needs a written request to the Director of the Crown Law Office – Criminal, who decides whether it goes ahead; a summary conviction appeal to the Superior Court needs the local Crown Attorney’s approval.

If the Crown does decide to appeal, you will receive a notice of appeal that will be served on you personally, typically by the police. The court rules require a Crown notice of appeal to be served on you personally, or by an approved alternative such as service on your trial lawyer if they confirm they have instructions to accept it (Court of Appeal Criminal Appeal Rules, r. 7(5) and 7(8); Superior Court Criminal Proceedings Rules, r. 5.01(4)). The notice of appeal will briefly set out the errors alleged by the Crown that form the basis for their appeal. To learn about appeals initiated by the defence, read How to Appeal a Criminal Conviction or Sentence on our criminal appeals page.

Powers of the Crown to appeal

Impasto oil painting of a stack of ultramarine and ochre bound books tied with a burnt-orange ribbon

The Crown can only launch an appeal in limited circumstances set out in the Criminal Code. A Crown appeal from an acquittal after a trial on indictment can only involve “a question of law alone” (s. 676(1)(a)); in other words, the Crown is prevented from bringing appeals that involve only factual issues, like whether the trial judge was right to believe a certain witness’ evidence.

Two qualifications matter. A Crown sentence appeal is about whether the sentence is fit, and it needs the Court of Appeal’s leave (s. 676(1)(d)). And in summary conviction cases, which are appealed first to the Superior Court of Justice (s. 813(b)), the Crown’s grounds are not confined to questions of law alone: the Crown Prosecution Manual says those appeals can be based on a question of fact, of mixed fact and law, or of law. A further appeal from the Superior Court to the Court of Appeal needs leave and a question of law alone (s. 839(1)).

What the Crown can appeal in Ontario, and on what grounds
What the Crown appeals Grounds Where it is heard
An acquittal after a trial on indictmentCriminal Code s. 676(1)(a) A question of law alone Court of Appeal for Ontario
A sentence after a trial on indictmentCriminal Code s. 676(1)(d) Fitness of the sentence, with leave Court of Appeal for Ontario
A stay, or an order quashing an indictmentCriminal Code s. 676(1)(b)–(c) The order itself Court of Appeal for Ontario
A summary conviction acquittal, stay or sentenceCriminal Code s. 813(b) Not limited to law alone Superior Court of Justice
A further summary conviction appealCriminal Code s. 839(1) A question of law alone, with leave Court of Appeal for Ontario

What must the Crown prove to overturn an acquittal?

Four things, in order. Most Crown appeals are won or lost at the third.

1. A right to appealAfter a trial on indictment, an acquittal can be appealed only on a question of law alone.Answers: can the Crown appeal at all?
2. A real error of lawA legal mistake by the trial judge, not a disagreement about which witness to believe.Answers: what went wrong?
3. A material bearing on the verdictIn the concrete reality of the case, the error might reasonably be thought to have affected the acquittal.Answers: did it matter?
4. A remedyUsually a new trial. A conviction can be entered only where there was no jury.Answers: what happens next?

An error of law is not enough on its own. In R v Graveline, 2006 SCC 16, the Supreme Court of Canada held that a Crown appeal from an acquittal cannot succeed on “an abstract or purely hypothetical possibility” that the accused would have been convicted but for the error. The Crown must satisfy the appeal court that the trial judge’s error “might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal.” It does not have to prove the verdict would necessarily have been different, but the burden is a heavy one: the court must be satisfied with a reasonable degree of certainty.

In Graveline itself, the Court of Appeal had set aside a jury’s acquittal on a murder charge. The Supreme Court held the Crown had not met its “very heavy” burden and restored the acquittal.

Crown appeals are rare. Because of the limitation put on the Crown through the Criminal Code and their internal review process, the Crown rarely appeals. The appeals they do initiate are usually ones that have a significant public interest and also have a good chance of success. That is why it is imperative to seek legal assistance.

Can the Crown appeal a sentence?

Yes, with leave of the Court of Appeal or one of its judges, unless the sentence is one fixed by law (Criminal Code s. 676(1)(d)). The court considers whether the sentence is fit, and may vary it within the limits the law allows or dismiss the appeal (s. 687(1)). Trial judges get wide latitude on sentence, so the Crown has to show one of the following:

A demonstrably unfit sentence

The Crown can win if the sentence is clearly unreasonable: a substantial and marked departure from what the offence and the offender call for (R v Lacasse, 2015 SCC 64, paras. 11 and 52).

An error in principle that changed the sentence

An error of law, a failure to consider a relevant factor, or the wrong use of an aggravating or mitigating factor, but only if it had an impact on the sentence (Lacasse, para. 44; R v Friesen, 2020 SCC 9, para. 26).

Not a second opinion

An appeal court may not intervene simply because it would have weighed the factors differently, or put the sentence in a different range (Lacasse, paras. 49 and 51).

If the Crown clears that bar, the Court of Appeal sentences afresh, though it still defers to the trial judge’s findings of fact that the error did not affect (Friesen, paras. 27–28). Deference works in both directions: Lacasse and Friesen were both Crown appeals in which the Supreme Court restored the sentence the trial judge had imposed.

Process for Crown appeals

Impasto oil painting of cream stone steps rising to an open ultramarine door in a burnt-orange frame, daylight glowing through

Crown appeals are subject to much the same process and limitation periods as any other appeal. While it is possible for the Crown to get a special order from the Appeal Court extending the time period in which to appeal (Criminal Appeal Rules, r. 9(3)), this is extremely rare. The chances are very good that if 30 days has passed since your acquittal or sentence, the Crown has opted against bringing an appeal.

  1. The Crown decides whether to appeal

    The trial Crown asks for approval, and the appeal is reviewed against the law and the public interest. The Crown Prosecution Manual says it will generally not be in the public interest to appeal an acquittal unless the Crown expects to proceed with a new trial.

  2. You are served with a notice of appeal

    The Crown must serve you with the notice of appeal within 30 days from the acquittal or sentence, depending on what order they are appealing. In the Court of Appeal the 30 days run from the acquittal or the sentence, whichever is later, and the Crown then has 5 more days to file it (Criminal Appeal Rules, r. 8(5)); in the Superior Court the notice is due within 30 days (r. 40.05).

  3. The Crown perfects its appeal

    If the Crown does appeal, it is up to them to order the necessary transcripts, draft a factum and prepare an appeal book. In the Court of Appeal, the Crown as appellant must perfect the appeal within 90 days after the transcript is certified complete, unless a judge or the Registrar directs otherwise (r. 44(3)). This material will be served on you or your lawyer at some later time.

  4. Your lawyer files your factum

    Your written answer to the Crown’s arguments. In the Court of Appeal, the respondent’s factum is due no later than five weeks before the hearing date (r. 46(6)).

  5. The appeal is heard and decided

    Your acquittal or sentence only changes if the Crown is successful on their appeal.

What can the Court of Appeal do if the Crown appeal is successful?

The appeal is dismissed

Your acquittal or sentence stands. This is the result when the Crown cannot show a legal error that mattered, or a sentence that was unfit or flawed in principle.

A new trial

If the Crown has appealed an acquittal, the Appeal Court may order you back to have another trial on the same charges (Criminal Code s. 686(4)(b)(i)).

A conviction entered

Or they may substitute a conviction and proceed to sentence you, or send the case back to the trial judge for sentencing. They cannot do this where the acquittal was a jury’s verdict (s. 686(4)(b)(ii)).

A different sentence

If the Crown successfully appeals sentence, the Appeal Court may increase the length of the sentence or change the structure of the sentence (for instance, they may order the remainder of a conditional sentence to be served in jail) (s. 687(1)).

If the Court of Appeal sets aside your acquittal, you can take the case to the Supreme Court of Canada as of right on a question of law where a judge of the Court of Appeal dissented, or where the Court of Appeal entered a verdict of guilty; otherwise you need the Supreme Court’s leave (Criminal Code s. 691(2)).

Bail, legal aid and costs on a Crown appeal

Three practical questions come up as soon as a Crown notice of appeal arrives.

Bail

Usually not needed. Release pending appeal under s. 679 is for an appellant. If you were acquitted, the Crown’s appeal does not put you back in custody. If a new trial is ordered, release is decided under the ordinary bail rules by a judge of the Court of Appeal (s. 679(7.1)). If you are the one appealing, see bail pending appeal.

Legal aid and a lawyer

Legal Aid Ontario’s appellate policy lists certificates “to respond to Crown appeals”. It treats an appeal as having merit where the person is likely to face a custodial sentence. If legal aid is refused, the Court of Appeal can appoint a lawyer for an accused who is a party to an appeal and cannot afford one, with fees paid by the Attorney General (s. 684).

Costs

On a summary conviction appeal, the appeal court may make any costs order it considers just and reasonable (s. 826), and the Court of Appeal has a similar power on a further appeal under s. 839 (s. 839(3)). Ask your lawyer whether a costs request makes sense in your case.

Either side can ask the Court of Appeal to receive new evidence where it is in the interests of justice. See fresh evidence on appeal.

What to do if you receive a Notice of Appeal

The most important thing to remember is do not panic. Even though Crown appeals are rare, as an appellant the Crown often faces an uphill battle to convince an appeal court to overturn an acquittal imposed by another judge or by a jury, or the sentence. With an experienced lawyer assisting you to respond to a Crown Appeal, your chances drastically increase that the Court will choose not to interfere and dismiss the appeal.

  • Keep the notice of appeal and note the date you were served.
  • Contact your trial lawyer, or an appeal lawyer, right away.
  • Keep complying with any sentence or order that is in place; it stands unless the appeal succeeds.
  • Ask about legal aid early if cost is a concern.

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

Why Choose Daniel Brown Law?

Daniel Brown Law is a leading Canadian criminal defence firm. Our lawyers defend Crown appeals as well as bringing appeals of their own.

A nationally recognized defence firm

An award-winning reputation in criminal defence and appellate advocacy: ranked among Canada’s top criminal law boutiques by Canadian Lawyer, listed for criminal defence by The Globe and Mail and Best Law Firms, and voted Best Law Firm and Best Legal Services by Toronto Star readers.

An appellate practice with a record

Our lawyers argue appeals at the Court of Appeal for Ontario and the Supreme Court of Canada, and respond to Crown appeals. See the appeals they have won on our criminal appeals page.

A response built on the record

We test the Crown’s grounds against the trial transcript and the standards in Graveline and Lacasse, and show the court why the trial judge’s decision should stand.

Recognized by the profession and the public

Daniel Brown Law is ranked among Canada’s top criminal law boutiques by Canadian Lawyer, listed by The Globe and Mail and Best Law Firms for criminal defence, and voted Best Legal Services by Toronto Star readers. Five of its lawyers are recognized by Best Lawyers in Canada for criminal defence.

The Globe and Mail Best Law Firms 2026, Criminal Law

Best Law Firms: Criminal Law

The Globe and Mail, 2026

Canadian Lawyer Top Criminal Law Boutique 2026-27

Top Criminal Law Boutique

Canadian Lawyer, 2026–27

Best Law Firms Canada, Criminal Defence Tier 1, 2026

Criminal Defence, Tier 1

Best Law Firms Canada, 2026

Best Lawyers in Canada 2027, Daniel Brown Law

Best Lawyers in Canada

Criminal Defence, 2027

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Toronto Star Readers’ Choice

Best Law Firm and Best Legal Services, repeat winner

Chambers Canada 2027, Ranked in Canada, Daniel Brown Law

Crime, Nationwide

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The firm and its lawyers have been repeatedly recognized for excellence in criminal defence:

Crown Appeals — Frequently Asked Questions

Short answers to the questions people ask when the Crown appeals.

Can the Crown appeal?

Can the Crown appeal a not guilty verdict in Canada?

Yes, but only in limited circumstances. After a trial on indictment, the Crown can appeal an acquittal only on a question of law alone (Criminal Code s. 676(1)(a)), and it must show the error might reasonably be thought to have had a material bearing on the acquittal (R v Graveline, 2006 SCC 16).

Can the Crown appeal a jury’s not guilty verdict?

Yes, on a question of law. But if the appeal succeeds, the Court of Appeal can only order a new trial; it cannot enter a conviction in place of a jury’s acquittal (s. 686(4)(b)(ii)).

What grounds can the Crown raise on appeal?

From an acquittal after a trial on indictment, only a question of law alone: the Crown is prevented from bringing appeals that involve only factual issues, like whether the trial judge was right to believe a certain witness’ evidence. A sentence appeal is about fitness and needs leave (s. 676(1)(d)). Summary conviction appeals to the Superior Court are not confined to questions of law alone.

How rare are Crown appeals?

Because of the limitation put on the Crown through the Criminal Code and their internal review process, the Crown rarely appeals. The appeals they do initiate are usually ones that have a significant public interest and also have a good chance of success.

Can the Crown appeal a sentence?

Yes, with leave. The Court of Appeal will change a sentence only if it is demonstrably unfit, or if the judge made an error in principle that had an impact on the sentence (R v Lacasse, 2015 SCC 64; R v Friesen, 2020 SCC 9).

Time limits and process

What is the time limit for a Crown appeal?

The Crown must serve you with the notice of appeal within 30 days from the acquittal or sentence. In the Court of Appeal the 30 days run from the acquittal or the sentence, whichever is later (Criminal Appeal Rules, r. 8(5)). The court can extend the time, but this is extremely rare.

How will I find out that the Crown has appealed?

You will be served with a notice of appeal, typically by the police. The rules require personal service, or an approved alternative such as service on your trial lawyer if they confirm instructions to accept it. The notice sets out the errors the Crown alleges.

Do I need bail while the Crown appeals my acquittal?

Usually not. Release pending appeal under s. 679 applies to an appellant, and the Crown’s appeal does not put you back in custody. If a new trial is ordered, release is decided under the ordinary bail rules by a judge of the Court of Appeal (s. 679(7.1)).

Can I get legal aid to respond to a Crown appeal?

Possibly. Legal Aid Ontario’s appellate policy lists certificates to respond to Crown appeals, where the person is likely to face a custodial sentence. If legal aid is refused, the Court of Appeal can appoint counsel, paid by the Attorney General (s. 684).

Outcomes

What can the Court of Appeal do if a Crown appeal is successful?

If the Crown has appealed an acquittal, the Appeal Court may order you back to have another trial on the same charges or, unless the acquittal was a jury’s verdict, substitute a conviction and proceed to sentence you (s. 686(4)). If the Crown successfully appeals sentence, the Appeal Court may increase the length of the sentence or change its structure, for instance by ordering the remainder of a conditional sentence to be served in jail (s. 687(1)).

Can I appeal to the Supreme Court of Canada if the Crown wins?

Yes. If your acquittal is set aside, you can appeal as of right on a question of law where a Court of Appeal judge dissented, or where the Court of Appeal entered a verdict of guilty; otherwise you need leave (s. 691(2)).

What should I do if I receive a Notice of Appeal from the Crown?

Do not panic. As the appellant, the Crown often faces an uphill battle to convince an appeal court to overturn an acquittal or a sentence. Contact a lawyer immediately, as the clock may already be ticking.

Related Resources

Charges we defend

Learn more about some of the charges we defend. We defend more than what we have written blog articles about.

Has the Crown appealed your case? Talk to Daniel Brown Law

The clock may already be running on your response. To arrange a consultation with Daniel Brown Law, contact our team or call our office at (416) 297-7200.

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