This guide is intended to help you prepare your criminal appeal. Office Staff cannot provide legal advice or complete your appeal on your behalf. For more information about criminal appeals and procedures, please refer to the Criminal Appeal Rules.
What is a summary conviction appeal?
A summary conviction appeal involves the review of a decision made by the a Superior Court Judge who has heard and disposed of an appeal to the Superior Court, following a trial in the Ontario Court of Justice. The subject of such an appeal is a summary conviction offence, as opposed to an indictable offence.
Do I require a lawyer?
No. You may represent yourself at the Court of Appeal, but it is recommended that you seek legal advice if possible.
Do I have an automatic right of appeal to the Court of Appeal?
No. The appellant must obtain leave to appeal.
How do I Apply for leave to appeal?
In most criminal appeals, the application for leave to appeal is dealt with at the same time as the appeal, by three judges of the Court of Appeal.
How do I begin an appeal?
An appeal is initiated by filing three copies of a notice of appeal (Form B). A certificate of the court reporter should be filed at the same time, indicating that copies of the trancsript required for use on the appeal have been ordered. If such a certificate cannot be filed immediately, it must be filed within fifteen days after the notice of appeal is filed. The Court of Appeal will serve a copy of the notice of appeal on the Crown Law Office or the Federal Department of Justice, depending on the nature of the appeal.
What is the deadline to file the notice of appeal?
The notice of appeal must be filed no later than 30 days from the date of the decision by the Superior Court judge whose decision is the subject of the appeal.
What if my time to file an appeal has expired?
A motion for an order extending the time to file the notice of appeal can be filed. The notice of motion (Form 37A) must be prepared and a copy served on the Crown, and then filed in the Court of Appeal with proof of such service. Proof of service should be in the form of an affidavit of service (Form 16B) swearing where, when and how the documents were served, or by an admission of service on the back cover of the document to be filed. The applicant should also serve and file an affidavit explaining the reasons for the delay.
What do I do once the notice of appeal has been filed?
The appellant is required to requisition the original papers
and exhibits (if any) from the court from which the appeal is
taken, within 14 days of the filing of the notice of appeal, and
file a copy of the requisition with the Court of Appeal. The
requisition is to be in Form 4E in the Rules of Civil Procedure.
The appellant must also prepare, serve and file the following
documents.
a) appeal book (3 copies are to be filed with the court);
b) appellant’s factum (3 copies are to be filed with the court); and
c) transcript: (3 copies are to be filed with the court).
All documents must be served on the Crown before they are filed, and proof of service must be filed with the Court of Appeal office when the documents are presented for filing. With the appeal book, the transcript and the appellant’s factum, the appellant must file two copies of a certificate of perfection. At this stage, the appeal is considered "perfected”, meaning that it is ready to be listed for hearing by the Court of Appeal. A book of authorities may also be filed in triplicate by the appellant. Such a filing is not mandatory. If you decide to file a book of authorities, a copy of that document, too, must be served on the Crown.
Appeal Book
The appeal book contains copies of all pertinent documents that were before the court from which the appeal has been taken. The appeal book must:
1) be bound front and back in buff covers;
2) have consecutively numbered pages throughout, or be arranged by tabs;
3) contain a table of contents describing each document, including:
(a) the notice of appeal and any supplementary notice of appeal;
(b) the order granting leave to appeal, if any, and any order made referring to the appeal;
(c) the information or indictment including all endorsements;
(d) the order or decision appealed from, if any, as signed and entered;
(e) the reasons for judgment, if not included in the transcript to be filed on the appeal;
(f) any order for release from custody pending appeal and any other order suspending the operation of the sentence;
(g) all documentary exhibits filed at trial, arranged in order by date;
(h) all maps, plans, photographs, drawings, charts that were before trial judge and are capable of reproduction;
(i) agreed statement of facts, if any;
(j) if the appeal is from sentence, the pre-sentence report, the criminal record of convicted person and any exhibits filed on the sentencing proceedings;
(k) any notice of constitutional question with proof of service to the Attorney General of Ontario and the Attorney General of Canada;
(l) any agreement made by parties relating to transcripts required for the appeal;
(m) a certificate of perfection; and
(n) a certificate of completeness (Form 61H) stating that the contents of the appeal book are complete and legible, signed by the appellant.
Note: The appellant may, on written consent by the Crown Law Office, sign out the original papers/exhibits from the Court of Appeal office in order to prepare photocopies to include in the appeal book.
Factum
The factum contains a statement of facts and an outline of the legal points on which the appellant bases his or her case. The appellant must type his or her name and sign the factum. The factum may not exceed 30 pages in length. Except in an appeal from sentence alone, the appellant's factum must be bound front and back in blue covers, and must consist of the following:
1) Part I, containing a statement identifying the appellant and the court appealed from, the nature of the charge(s), the result in that court, and whether the appeal is from conviction, conviction and sentence, acquittal or other disposition;
2) Part II, containing a concise summary of the facts relevant to the issues on appeal, with such references to the evidence by page and line as is necessary;
3) Part III, containing a statement of each issue raised, immediately followed by a concise argument with reference to the law and authorities relating to that issue;
4) Part IV, containing a statement of the order that the Court of Appeal will be asked to make;
5) Schedule A, containing list of authorities referred to in the order in which they appear in Part III; and
6) Schedule B, setting out the text of all relevant provisions of statutes, regulations and by-laws, other than the Criminal Code.
Transcript
The transcript is prepared by the court reporter or reporters present during the trial or during the hearing of the appeal in the Superior Court. The appellant bears the responsibility of ordering any such transcript. Transcripts must be bound front and back in red covers.
Certificate of perfection
The certificate of perfection states:
a) that the appeal book, transcripts, and appellant’s factum have been filed,
b) the estimated total length of time for oral argument, and
c) the name, address, and telephone number of the respondent or of his or her lawyer.
Book of authorities
The book of authorities contains copies of all cases, statutes and other authorities that the appellant considers to be relevant to the appeal. The book of authorities must be bound front and back in blue covers and the passages that will be referred to in oral argument must be marked, that is, underlined, highlighted, or side-barred.
When am I required to file these documents?
The appellant is required to perfect the appeal within 90 days from the filing of transcripts, if there are any. If there are no transcripts, the appellant must perfect the appeal within 60 days from the filing of the notice of appeal.
What will happen if I delay the perfection of the appeal?
a) the Crown can ask the court to have the appeal placed before a Court of Appeal panel to have it spoken either for dismissal or for other directions, given the lack of perfection of the appeal; or
b) the Crown may file a motion to be heard by a single judge asking that the appeal be placed before a Court of Appeal panel to have it spoken to. The Registrar of the Court of Appeal can place the appeal before a panel to have it spoken to regarding the lack of perfection.
What can I do if I am not able to perfect on time?
If for reasons beyond your control, you are not able to perfect the appeal on time, you have two options:
a) to ask the Crown for consent in writing to an extension of time to perfect the appeal; or
b) to file a motion to be heard by a Court of Appeal judge asking for an extension of time to perfect the appeal.
When will the appeal be heard?
Once the appeal is perfected, it is placed on a list of appeals that are ready for hearing, and the appeal is assigned a hearing date.
When should the Crown’s material be filed?
The Crown’s factum must be served and filed no later than 10 days before the week in which the appeal is to be heard.
What if I decide not to continue the appeal?
When an appellant chooses to discontinue (abandon) the appeal, a notice of abandonment must be filed in the Court of Appeal office. The notice of abandonment must be signed by the appellant or a solicitor if the appellant is represented by that solicitor. Where the notice is signed by the appellant, the signature must be verified by affidavit or witnessed by a solicitor or by an officer of the custodial institution in which the appellant is confined.
GLOSSARY OF TERMS
Affidavit of service is a statement sworn or affirmed, that the document to which it refers was delivered to the party being served. The affidavit should indicate where, when and how such service was made.
Appellant is the party who appeals a decision to the Court of Appeal.
Moving party is the party who makes a motion to the court for specified relief.
Original papers/exhibits are documents filed at the trial or hearing of the proceeding involved.
Summary Conviction Appeal Court is the court hearing an appeal from a conviction or sentence pertaining to a summary conviction offence.
