How to Process a Summary Conviction Appeal
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);
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.
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:
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.
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:
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
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
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
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.
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