If you are found guilty of a criminal offence, you may ask a higher court to review decisions made during the trial. This is called an appeal. You can ask the court to look at the conviction (what you were found guilty of doing) or the sentence (the punishment the court ordered). The Crown attorney (the lawyer representing the community) can also ask for an appeal.

The appeal court will hold a hearing to listen to each party’s arguments.

Before a hearing is scheduled, the appeal court needs:

  • trial transcripts and the record of what happened at the trial
  • the appeal book which contains important documents from the trial
  • written arguments (called a factum) from the appellant (person making the appeal) and respondent (person responding to the appeal)

An appeal court can make several decisions, including ordering a new trial or changing the sentence.

Where appeals are heard

In Ontario, appeals are heard at the Superior Court of Justice or the Court of Appeal.

Matters that proceed by way of summary conviction are appealed to the Superior Court of Justice and are heard by a judge. Summary offences may include:

  • driving under the influence
  • minor assaults
  • property damage
  • offensive behaviour

Matters that proceed by way of indictment are appealed to the Court of Appeal for Ontario and are usually heard by a panel of judges. Indictable offences include:

  • aggravated assault
  • sexual assault with a weapon
  • drug trafficking offences
  • manslaughter
  • murder

Types of appeals

Appeals against convictions

If there is an appeal against the conviction, the appeal court may:

  • review how the issues raised on appeal were handled at the trial
  • consider whether any significant errors were made during trial that impact the trial
  • review what happened during the trial to consider if there was enough evidence to support the conviction

Appeals against sentences

If there is an appeal against the sentence, the appeal court may:

  • consider if the sentence is fair and appropriate in the circumstances
  • consider how sentencing principles were applied and whether any significant errors were made that impacted the sentence imposed

Crown appeal

The Crown attorney can appeal an acquittal (when the accused person is found not guilty) or sentence, but the Crown’s right to appeal is much more restricted. To appeal an acquittal, the Crown must show there was a significant error of law that had a substantial impact on the acquittal.

Decisions made by the appeal court

In most cases, an appeal court can make one of the following decisions:

  • dismiss the appeal if:
    • no error was made
    • an error that was made had no impact on the outcome
    • the appeal court thinks the sentence was appropriate
  • order a new trial if:
    • a significant error of law was made by the trial judge
    • there was a miscarriage of justice
  • set aside the conviction and either:
    • order a new trial
    • enter an acquittal
  • set aside the acquittal and either:
    • order a new trial
    • enter a verdict of guilty if the trial was run without a jury
  • change the sentence by:
    • increasing or reducing the duration
    • adding or removing penalties, such as a fine or probation

Serving the sentence or being on bail during the appeal process

A prison sentence will continue even if you have started an appeal.

You can ask the appeal court to release you from custody on bail until the appeal is heard or the decision is released.

If released on bail, you will need to:

  • follow specific conditions (for example, have no contact with the victim or live at a certain address)
  • return to the institution the day that the appeal is scheduled to be heard, and also the day the decision is to be released

If the offender caused serious injury or trauma and is released on bail, the victim(s) will be notified by the police service or the victim witness assistance program, or both.

Attending the appeal hearing

Anyone can attend appeal hearings, including victims of crime and their families.

Victims may wish to bring a friend or family member to court for support. Victims may also wish to bring a support animal for comfort. You must make your request to either:

  • Crown Counsel
  • the Victim/Witness Assistance Program, if they are involved in the case

Learn more about the support available to victims going to court.

Checking the status of the appeal

If you are an offender

You can contact the Crown attorney’s office that handled the trial.

If you are a victim

If you are being assisted by the Victim/Witness Assistance Program (VWAP) and would like information on a summary conviction appeal, contact your Victim Witness Services Worker who assisted you throughout the trial.

If you are being assisted by VWAP and would like information on the status of an appeal of an indictable offence, contact the VWAP Court of Appeal for Ontario office at 416-325-1668.

If you are uncertain, you may also contact the police officer that was in charge of your case to find out more information.