Appeals

It's not over. Just because you lost does not mean you should have. Justices are not lawyers and legal arguments can go over their heads. An appeal will be heard by a judge who is a lawyer. You will have a much better chance presenting some of the more nuanced legal arguments.

You appeal your conviction to the Ontario Court of Justice. You must pay the fine imposed before filing the notice of appeal. However under section 111(2) of the Provincial Offences Act you can enter into a recognizance where the judge may suspend some or all of the fine while the matter is under appeal. You can argue that the penalty is harsh and an unfair burden given that there is significant grounds for appeal. You can further request the conviction be stopped (stayed) pending the appeal under section 112.

Valid grounds for the appeal are either errors in law or errors in fact.

Errors in Law

• The justice considered hearsay evidence.
• The justice stated that something was not a valid defence to a charge when it was.
• A statement you made was used as evidence without first determining it was given voluntarily.
• You were not given the opportunity to make submissions before judgement or sentencing.

While these are errors, you must show that they resulted in a significant miscarriage of justice. If the error was minor and did not affect the outcome of the trial, your conviction will stand.

Errors in Fact

A justice makes this error when they conclude that something happened without any evidence to support that finding. For example, concluding that you were speeding when no evidence is presented as to the speed limit.

Insufficient Explanation

At the beginning of Step 5 the case of R. v. Al-Emam was provided to show you that the justice must help you, explain to you what's going on and clearly indicate why he made a decision to convict you.

An example of this in action can be found in R. v. Andrews, 2005. Here the appeal court overturned the conviction because the trial justice did not explain why he ignored the testimony of the passenger.

If you left court convicted and in a state of confusion about what happened, this may be sufficient grounds to appeal. But be warned, appeals are expensive.

The Cost of Appeal

You have 15 days to appeal your conviction or the sentence. You will most likely be required to provide a transcript of the trial. This means the court reporter will transcribe the recording of the trial and give you three copies. You must give two copies to the clerk of the court who will forward the second copy to the prosecutor.

The cost of the transcript depends on how long your trial was. The longer it took, the greater the amount to be transcribed. You will be asked to pay a nominal $25 deposit to start the process. When the reporter examines the recording, she will provide an estimate that you will have to pay. It will cost a minimum of $60 to upwards of several hundred dollars. When the transcript is ready, you will likely be charged a final settlement amount if it was higher than expected. This is on top of the fine you've already paid to start the appeal process.

Appeal Delays

The amount of time to obtain the transcript varies by jurisdiction. In Toronto it can take between 24 to 30 months. The good news is that an unusually long delay to provide the transcript can lead to a dismissal of your charge and a refund of your transcript fee. See R. v. Ovided, 2008.