According to the latest data from Statistics Canada, Ontario criminal courts recorded over 101,000 Criminal Code offence convictions during the August 2023-July 2024 reporting period. Among the court system’s total decisions during the period were nearly 3,500 acquittals and almost 314,000 stayed or withdrawn charges.
Of the 400,000 or so defendants — some of whom invariably faced multiple charges — affected by these decisions, you might be inclined to think, “case closed.” Those convicted have been sentenced to appropriate punishment, while those acquitted are free to move about the cabin, unencumbered by their previous legal jeopardy.
However, the criminal defence lawyers of the Mass Tsang law firm in Toronto might tell you to ease back on such assumptions. “The Canadian legal system affords those convicted of a criminal offence the right to appeal the court’s decision,” says Mass Tsang co-managing partner Robbie Tsang . “Such appeals can challenge the conviction itself or the sentence but must be based on grounds recognized by the Criminal Code and court precedents.”
Robbie’s co-managing Mass Tsang partner Jeff Mass adds, “And those acquitted are not necessarily out of the legal woods, as the Crown also has the right to appeal if it believes the court has made an error of law or fact. Additionally, Crown prosecutors can appeal the sentence of anyone convicted if they believe it is too lenient.”
For the record, the Crown has a lower threshold to cross — and a higher success rate — in the appeals process, and only about 5% of criminal defendants appeal their convictions in a given year, while 1%-2% appeal their sentences. Whatever the numbers, if a Canadian court has convicted you of a criminal offence, you might be interested in learning more about the appeals process. So, here’s what you need to know.
The rights of appeal from either a defendant or the Crown are primarily established under Part XXI of the Criminal Code. Under Section 675 of the Code, a person convicted of an indictable offence may appeal the conviction with the provincial court of appeal based on any grounds involving:
Those convicted can appeal their sentences unless the punishment is fixed under the law. Except for appeals concerning questions of law alone, all appeals require “leave” of the appeals court or, in some cases, a trial judge, to proceed. In other words, unless the appeals court or a trial judge approves the grounds for the appeal, it will not proceed to the hearing stage.
Appeals protocols for summary conviction offences are established under Section 675 and Sections 812 to 839 of the Code. Summary conviction appeals can only challenge convictions based solely on questions of law. Summary conviction sentencing appeals must be grounded in errors of sentencing principles or manifest unfairness. All summary conviction appeals are heard first by a superior court judge, whose ruling can be further appealed to the appeals court, with its leave based on appeal merits.
Section 676 of the Code provides the core framework for Crown appeals of acquittals and sentences in indictable offence cases, with Sections 812-839 adding clarity for summary conviction Crown appeals. Crown appeals of acquittals are limited to those involving questions of law, while it can only appeal sentences based on errors in sentencing principles or if the sentence was “clearly unfit.”
Once a case is closed after an acquittal or conviction with sentencing, both sides have a 30-day deadline to file an appeal with the court of appeal or, for summary conviction offences, the superior court. A notice of appeal must specify the grounds of appeal and the relief sought by the parties, whether an acquittal, a new trial, or a sentence modification. Depending on the province, the parties then have between 60 and 90 days to file their written arguments, known as a “file factum.” The Crown is then provided with another 30 to 60 days to respond to the defendant’s file factum. In rare cases, the court or superior court judge will allow the defendant to respond to the Crown’s factum.
The court of appeal or superior court judge will schedule a hearing after responses to the factum have been filed. During this hearing, each side is provided with between 30 and 60 minutes to make their oral arguments, which must focus on the relevant appeal issues and not attempt to re-try the case. The parties cannot introduce witnesses or conduct cross-examinations during appeal hearings, and they may introduce new evidence only if it meets the “Palmer test.” This test, established by the 1980 Supreme Court ruling in Palmer v. The Queen [1980] 1 S.C.R. 759 , requires that:
In deciding the outcome of an appeal, the superior court judge or court of appeal panel has several options, including:
"Appealing a criminal conviction or sentence is not just a legal formality — it’s a critical safeguard in ensuring that justice is done. Even a small error at trial can have significant consequences, and the appeals process allows those mistakes to be reviewed and corrected," — Mass Tsang co-managing partner Jeff Mass .
Criminal defendants and Crown prosecutors who lose their appeals both have the right to appeal their cases further to the Supreme Court of Canada within 60 days of the decision. Appeals to the high court are highly restricted to ensure that they address only matters of national importance or to resolve legal clarity. Most appeals to the Supreme Court require filing an application for leave to appeal, which is reviewed by a three-judge panel to determine whether such an appeal has legal merits of national significance. If not, it usually denies leave within one to three months, typically without providing a reason. If the panel approves the leave to appeal, the parties follow a process similar to that of the appeals court.
The skilled criminal defence lawyers have not yet successfully defended their clients all the way to the Supreme Court, but we have secured some legal victories through appeals to superior court judges and the provincial appeals court. However, we prefer to ensure positive outcomes for our clients as early as possible by strategizing highly effective defences. This has helped us successfully defend thousands of Greater Toronto Area clients against criminal charges for more than three decades. To secure the services of one of the best criminal defence teams in the GTA, contact Mass Tsang today for a free consultation.
