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An appeal is not a second trial. It is a review for legal error, unreasonable verdict or miscarriage of justice, and it runs on strict deadlines. This page explains the routes, the grounds and the timelines.
Book My Consultation →A notice of appeal in Ontario must generally be served and filed within 30 days. Missing the deadline is not fatal, because an extension of time can be sought, but it makes the task considerably harder.
Generally 30 days to serve and file a notice of appeal, running from sentencing in a conviction appeal. If that period has passed, an extension of time may be sought, and the court considers whether you formed an intention to appeal within the period, the explanation for the delay, any prejudice, and the merits of the proposed appeal.
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An appeal is a review of what happened at trial. It is not a fresh hearing, and the appeal court does not retry the case or hear the witnesses again. It reads the transcript and the exhibits and decides whether a legal error was made, whether the verdict was one no properly instructed jury or judge could reasonably have rendered, or whether there was a miscarriage of justice. Disagreeing with the verdict is not a ground of appeal; identifying an error is.
Deadlines come first because everything else depends on them. In Ontario a notice of appeal is generally required within 30 days, running from the sentence in a conviction appeal. If that period has passed, an extension of time can be sought, and courts assess a genuine intention to appeal formed within the period, a reasonable explanation for the delay, prejudice to the respondent, and the merits of the proposed appeal. It is worth applying rather than assuming the opportunity is gone, but it is far better not to be in that position.
| Trial proceeding | Appeal court | Governing provisions | Leave required |
|---|---|---|---|
| Summary conviction matter, Ontario Court of Justice | Superior Court of Justice | Part XXVII, sections 812 to 828 | No, for conviction; sentence appeals require leave |
| Indictable matter, any trial court | Court of Appeal for Ontario | Sections 675 and 676, powers under section 686 | Not for a question of law alone; leave for questions of fact or mixed fact and law, and for sentence |
| Further appeal from a summary conviction appeal | Court of Appeal for Ontario | Section 839 | Yes, and only on a question of law alone |
| Appeal from the Court of Appeal | Supreme Court of Canada | Sections 691 to 693 | As of right on a dissent on a question of law, otherwise leave is required |
Summary conviction appeals are heard by a single judge of the Superior Court of Justice. Indictable appeals are heard by a panel of the Court of Appeal for Ontario. In both, the appeal is argued on a written factum and an appeal book, prepared from the trial transcripts, which must be ordered promptly because their preparation is often the longest step.
Section 686(1)(a) allows an appeal court to allow an appeal against conviction where the verdict is unreasonable or cannot be supported by the evidence, where the judgment is based on a wrong decision on a question of law, or where on any ground there was a miscarriage of justice. Recurring grounds include an error in the legal test applied, misapprehension of evidence material to the reasoning, an improper admission or exclusion of evidence, reasons so deficient that meaningful appellate review is impossible, an error in a jury charge, and ineffective assistance of counsel where it caused a miscarriage of justice.
Even where an error of law is established, section 686(1)(b)(iii), the curative proviso, allows the court to dismiss the appeal where no substantial wrong or miscarriage of justice actually occurred. That is why appeals turn not only on identifying an error but on demonstrating that it mattered. Where an appeal succeeds, the remedies under section 686(2) are an acquittal or a new trial; the court does not simply substitute its own view of the facts.
Fresh evidence may be admitted on appeal under section 683, but only within narrow limits. The evidence must generally not have been available with due diligence at trial, must be relevant to a decisive issue, must be reasonably capable of belief, and must be such that, taken with the other evidence, it could reasonably be expected to have affected the result.
Sentence appeals require leave and are decided on a deferential standard. An appellate court will not intervene simply because it would have imposed something different. It will intervene where the sentencing judge made an error in principle, failed to consider a relevant factor, overemphasised an appropriate factor in a way that affected the sentence, or where the sentence is demonstrably unfit. Section 687 gives the court power to vary the sentence within the limits prescribed by law.
Sentence appeals are also where ancillary orders are revisited: weapons prohibitions under sections 109 and 110, driving prohibitions, DNA orders, registration orders and restitution. An error in an ancillary order can be corrected even where the custodial portion is not disturbed.
Where a matter was prosecuted by summary conviction in the Ontario Court of Justice, the appeal lies to a judge of the Superior Court of Justice under Part XXVII of the Criminal Code, beginning at section 812. An appeal may be taken against conviction, against sentence with leave, or against an order dismissing an information. The Crown has parallel rights of appeal. Section 822 applies most of the powers in section 686 to summary conviction appeals, so the grounds are substantially the same as on an indictable appeal: unreasonable verdict, error of law, or miscarriage of justice.
The procedural steps are set out in the applicable rules of court and in the practice directions of the Superior Court. A notice of appeal is served and filed within the prescribed period, the transcripts are ordered, the appeal is perfected with an appeal book and a factum, and it is then listed for hearing before a single judge. Section 830 provides an alternative route for appeals confined to questions of law or jurisdiction, heard on the basis of the trial record rather than a full transcript, which can be faster in narrow cases.
A further appeal from the summary conviction appeal court to the Court of Appeal for Ontario is available under section 839, but only with leave and only on a question of law alone. That is a demanding threshold, and it means the summary conviction appeal is in practice the last full opportunity to have the case reviewed.
The single most underestimated aspect of an appeal is the transcript. Nothing can be assessed, drafted or argued without it, court reporters work to their own schedules, and a multi-day trial can take months to transcribe. Transcripts are also a real expense, charged by the page. For an appellant in custody, this is why an application for release pending appeal under section 679 is usually brought at the outset rather than waiting for the record to be complete.
Legal Aid Ontario may issue certificates for appeals where the financial eligibility criteria are met and an opinion supports the merit of the appeal. Duty counsel and the inmate appeal programme assist self-represented appellants at the Court of Appeal for Ontario. Where an appeal is funded privately, the work is largely reading and writing: the record is reviewed in full, the grounds are settled, and a factum is prepared. Oral argument is short by comparison and is directed at the points the panel wants explored.
An appeal is also not the only avenue where something has gone wrong. Where a guilty plea was entered without a proper understanding of its nature and consequences, or was not voluntary, an application to strike the plea may be available. Where all appellate avenues have been exhausted and new information suggests a wrongful conviction, an application for ministerial review under sections 696.1 to 696.6 of the Criminal Code can be made. These are exceptional remedies with high thresholds, and they are mentioned here for completeness rather than as an expectation.
The most useful thing an appellant can do at the start is to obtain the trial record and a candid written opinion on whether there are arguable grounds. That opinion costs a fraction of a full appeal and it tells you whether to proceed. If the answer is that there is no viable ground, that is disappointing but it is worth knowing before committing years and money to the process.
Appeals do not run in only one direction. Section 676 of the Criminal Code allows the Crown to appeal an acquittal on a question of law alone, to appeal an order quashing an information, to appeal a verdict of not criminally responsible on account of mental disorder, and to appeal a sentence with leave. Section 813 provides equivalent rights on summary conviction matters. If you were acquitted and the Crown has served a notice of appeal, that acquittal stands unless and until the appeal succeeds, and you remain presumed innocent throughout.
A Crown appeal from an acquittal is narrower than a defence appeal from a conviction. It must rest on a question of law alone, which means the Crown cannot simply argue that the trial judge should have believed different evidence. It must also show that the error might reasonably be thought, in the concrete reality of the case, to have had a material bearing on the acquittal. Where a Crown appeal succeeds, the usual remedy is a new trial rather than the substitution of a conviction, though section 686(4) permits an entry of conviction in defined circumstances following a trial by judge alone.
Crown sentence appeals argue that a sentence was demonstrably unfit or that the judge erred in principle, and they are assessed on the same deferential standard as defence sentence appeals. Being the respondent on an appeal is a different exercise from being the appellant: the record is fixed, the grounds are set by the other side, and the task is to defend the result reached at trial. It still requires counsel, and legal aid coverage is available on the same eligibility basis.
Generally within 30 days. If that period has passed, an application to extend time is brought together with the notice.
Section 679 requires the appellant to show the appeal is not frivolous, that they will surrender into custody as required, and that detention is not necessary in the public interest.
Nothing meaningful can be assessed without them, and preparation takes weeks or months depending on the length of the trial.
Counsel reads the full record and identifies which grounds are genuinely arguable. Appeals are stronger for having fewer, better grounds.
The appeal book, transcripts and factum are filed. The appeal is then scheduled for hearing.
Oral argument is time-limited and focused on the written material. Decisions may be given from the bench or reserved.
Most appeals do not succeed, and that is not a reflection on the appellant. Appellate courts are looking for legal error, not for a different view of the facts, and trial judges are entitled to considerable deference on credibility findings. A responsible appellate opinion begins with reading the transcript and telling you frankly whether there is a viable ground. Anyone who offers a confident prediction before reading the record is not in a position to give one.
Appeals may be conducted by Lexaltico LLP or referred to experienced appellate criminal counsel within our LexKonnect consortium, since appellate work is a distinct discipline. Any referral arrangement is disclosed to the client in writing before it takes effect and complies with Rule 3.6-6.1 of the Law Society of Ontario's Rules of Professional Conduct. The client's interests govern the choice of counsel, and the client is free to retain other counsel at any stage.
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