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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.
- 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
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 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.
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
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.
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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.
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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).
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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.
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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)).
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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.
Best Law Firms: Criminal Law
The Globe and Mail, 2026
Top Criminal Law Boutique
Canadian Lawyer, 2026–27
Criminal Defence, Tier 1
Best Law Firms Canada, 2026
Best Lawyers in Canada
Criminal Defence, 2027
Toronto Star Readers’ Choice
Best Law Firm and Best Legal Services, repeat winner
Crime, Nationwide
Chambers Canada, 2027
The firm and its lawyers have been repeatedly recognized for excellence in criminal defence:
- Canada’s Best Law Firms 2026 — The Globe and Mail (Report on Business)
- Canada’s Top Criminal Law Boutiques 2026–27 — Canadian Lawyer Magazine
- Best Law Firms 2026 — Criminal Defence and Appellate Practice (Best Lawyers / Best Law Firms)
- Best Lawyers in Canada — Criminal Defence — Daniel Brown, Hilary Dudding, Mark Halfyard, Lindsay Board and Colleen McKeown
- Toronto Star Readers’ Choice Awards — Best Law Firm and Best Legal Services, repeat winner
- Chambers Canada 2027 — ranked for Crime, nationwide, by Chambers and Partners
- Certified Specialists in Criminal Law — Law Society of Ontario (Daniel Brown and Mark Halfyard — fewer than 2% of Ontario criminal lawyers hold this designation)
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.
Charges we defend
Learn more about some of the charges we defend. We defend more than what we have written blog articles about.
- Assault
- Bail hearings
- Bail pending appeal
- Coercive control
- Criminal appeals
- Criminal harassment
- Dangerous driving
- Distributing an intimate image
- Domestic assault
- Drug possession
- Drug trafficking
- Extradition
- Fail to appear at court
- Fail to comply with bail
- Failing to remain at the scene
- Firearm and weapon possession
- Forcible confinement
- Fraud
- Impaired driving
- Importing drugs
- Mischief
- Murder and manslaughter
- Obstruct police
- Peace bonds
- Public mischief
- Refusing a breath sample
- Robbery
- Sexual assault
- Sexual exploitation
- Theft and shoplifting
- Uttering threats
- Voyeurism
- Young offenders
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.
Phone: (416) 297-7200
Office: Daniel Brown Law, 400–103 Church St., Toronto, ON M5C 2G3