How to Appeal a Criminal Conviction or Sentence in Toronto, Ontario

How to Appeal a Criminal Conviction or Sentence

This article is a brief and general overview of legal information about criminal appeals in Ontario. It is not intended to be used as a substitute for proper legal advice. Those looking for legal advice on the time limits or process of filing an appeal with the court should consult a criminal lawyer.

What is an appeal?
In a nutshell, an appeal is a review by a higher court to determine the correctness of what happened at the trial and whether the trial was conducted fairly. Usually, appeals are based on the judge at the trial making a mistake in how he or she applied the law to the facts of the case. However, in some circumstance, an appeal can also be used to review whether the judge properly considered the evidence put forward at trial or whether the evidence was sufficient for a conviction. An appeal can be brought against a conviction or sentence.

What is the difference between a conviction appeal and a sentence appeal?
A conviction appeal challenges whether the person should have been found guilty or not guilty at trial. A sentence appeal challenges the type or length of punishment the Judge imposed after a person has been found guilty. A person seeking to appeal their case may chose to appeal both the conviction and sentence at the same time.

There are two types of appeals for criminal matters:

Summary conviction appeals
A summary conviction appeal is a review of a decision of a provincial court judge where the Crown has made the decision to proceed by way of a summary trial or the Criminal Code requires that trial proceed summarily. The Crown will often choose to proceed summarily where the case is less serious or they are seeking a lower penalty at the end of the trial. For most summary conviction cases, the maximum penalty is six months in jail (some offences have a maximum sentence of 18 months in jail). Summary conviction appeals are brought before a single judge at the Superior Court of Justice in the jurisdiction where the trial took place. For instance, if the trial took place in Toronto, the appeal would be heard at the Superior Court of Justice in Toronto, at 361 University Avenue.

Indictable appeals
For more serious matters, the Crown may choose to proceed by Indictment or the Criminal Code may require the offence proceed by way of Indictment (for instance, murder, robbery or kidnapping). In Ontario, these appeals take place at the Court of Appeal for Ontario in Toronto regardless of where in the province the trial took place. Appeals to the Ontario Court of Appeal are heard before a panel of three judges.

What are the time limits to appeal?
For both summary conviction appeals and indictable appeal you can start an appeal after you have been convicted. Appeals have strict time limits. The time limit is normally 30 days from the date on which you are sentenced. For many summary conviction matters or guilty pleas, the conviction and sentence happens on the same day. It is possible to bring an appeal outside the 30 day period, however, you have to seek special permission from the appeal court.

Is it possible to get bail during my appeal?
It is possible to get bail while your appeal is before the Court. This is called bail pending appeal. Bail pending appeal requires a separate motion to be brought before the Court hearing the appeal. The Court must be satisfied of three things:
1) There is a possibility that the appeal will be successful;
2) It is not contrary to the public interest that the person be released pending appeal (this a very significant factor for offences that result in a long jail sentence); and
3) That the person will surrender themselves on or before the date of the hearing.

Is it possible to suspend other Orders, such as a driving prohibition, during my appeal?
It is also possible to have ancillary court orders imposed as part of the sentencing be suspended pending the determination of the appeal; for instance, the mandatory year long driving prohibition on convictions for impaired driving. Fines, restitution, forfeiture of property or probation orders can also be suspended pending appeal. Like a bail pending appeal, this requires a separate motion before the Court that will hear the appeal.

How are appeals conducted?
An appeal is not a re-trial of the case. The evidence that was heard at trial is often not in dispute. All the evidence heard by the witnesses at trial (transcripts of testimony) and any physical evidence entered at trial (exhibits) are reproduced for the appeal court. The issue on appeal is whether the judge applied the law properly and arrived at a decision he or she was entitled to make. An appeal court does not under normal circumstances hear witnesses or receive any new evidence. The appeal court will also generally not interfere with a judge's findings of credibility (i.e. whether the trial judge believed or did not believe a witness). The court process consists of the lawyers making legal arguments (submissions) as to whether the decision of the judge at trial was correct in how he applied the law to the evidence before him.

What is a factum?
The "factum" is a fancy name for a document that briefly outlines the facts of a case and the legal arguments that are going to be made during the hearing of the appeal. Most of the work done on appeals is done outside the courtroom. The appeal court requires that a full outline of all the arguments and the law that the parties are going to rely upon be prepared in advance of the hearing and filed with the court.

Is it possible to put new evidence before the appeal court?
It is possible for the appeal court to hear new evidence on appeal; however, the ability to put new evidence before the court is very limited. The appeal court can consider new evidence if it was not available at trial through the trial lawyer's due diligence, it is significant and reliable evidence and it could have affected the verdict if it was before the trial court.

What are some of the results from a successful appeal?

a) Order a new trial:
A successful appeal can result in the judge (or judges) ordering a new trial if the appeal court is convinced that the judge at trial made a legal error or the trial was not conducted fairly. The appeal court will set aside a conviction and order a new trial before a different judge. It is then up to the Crown to determine whether or not they will re-prosecute the offence. In some cases ,the Crown may decide it is no longer in the public interest to re-prosecute the case again.

b) Order an acquittal:
In circumstances where the appeal court is convinced that the evidence does not support a conviction, the appeal court may set aside the conviction and order that a finding of not guilty, an acquittal, be substituted. This occurs more rarely than a new trial being ordered.

c) Vary the sentence:
If the appeal court is convinced that the sentence imposed by the trial judge was too high or the judge at trial made a legal error during the sentencing, the appeal court may lower the sentence, may order that a sentence be served in the community or may remove any ancillary orders imposed as part of the sentencing (such as weapons prohibitions, DNA orders, fines, restitution or probation).

What does it cost to appeal?
The costs to appeal will vary depending on whether it is a summary conviction appeal or an indictable appeal, the complexities of the legal issues and the length of the trial. For instance, appeals that require fresh evidence are often more expensive. There are also significant costs up front to pay for the transcripts of the trial.

Every word that is spoken in open court is recorded by a court reporter - whether it is evidence from witnesses or legal argument made by the lawyers. The appeal court requires copies of the transcripts be filed with the court to assist them in deciding the appeal.

For conviction appeals, usually the entire transcript of trial is required. In the case of sentence appeals, the court is prepared to decide the matter on less than a complete record, often supplemented by an agreed statement of facts between the defence and the Crown. This often results in less costs.

For indictable appeals, the cost of transcripts alone are $3.75 per page (for five copies) or approximately $500 - 600 for a full day of court time; thus a five day jury trial in superior court could cost $2500 to $3000 for the transcripts.

For summary conviction appeals, the transcripts are usually shorter but the cost per page is higher at $4.30 per page (for three copies).

If you, or someone you know requires assistance with a sentence appeal or conviction appeal, you should immediately contact a lawyer as the clock may already be ticking on the appeal deadline. For a free consultation, I can be reached at (416) 297-7200.

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Impaired Driving Charges in Toronto

Drinking and Driving and Impaired Driving

Being charged with “drinking and driving” is a criminal matter in Canada governed by the Criminal Code. This article is a brief and general overview providing legal Information on Drinking and Driving, Impaired Driving, Over 80 and Refuse Breath Sample charges in Toronto, Ontario. Those looking for advice on a drinking and driving charge should consult a criminal lawyer.

What is drinking and driving?
Driving while impaired by alcohol, driving with more than 80 milligrams of alcohol in 100 millilitres of blood (Over 80) or refusing to provide a breath sample are all examples of drinking and driving offences in Canada.

What are the penalties for drinking and driving?
The Criminal Code provides a minimum fine of $600 for a first offence in addition to a criminal conviction registered on your permanent record. Subsequent drunk driving convictions carry minimum jail penalties beginning with 14 days in jail for a second conviction. A drinking and driving conviction will also require a mandatory driving prohibition preventing a prohibited driver from driving anywhere in for a minimum of one year, or three months in a province such as Quebec or Alberta that has an concurrent ignition interlock program. Ontario does not currently participate in an ignition interlock program.

In addition to the penalties mandated under the Criminal Code, a conviction for drunk driving will also drastically affect your motor vehicle insurance coverage and premiums. In Ontario, you will probably be required to insure with Facility Association, which insures high-risk drivers and exacts high premiums. For each of the three years following your conviction, Facility Association will levy a 100 per cent surcharge atop your premiums. It will impose more surcharges, up to a maximum of 250 per cent, for other convictions relating to the same incident, such as careless driving or failing to remain at the scene of an accident. Each insurance company has its own conviction surcharge schedule.

What is the difference between impaired driving, over 80, and refusal to provide a breath sample?

Impaired Driving
In order to establish an impaired driving charge, the Crown must prove that the driver’s ability was impaired by alcohol or a drug. Evidence of impairment may be proven by a combination of driving observations and physical observations of the driver. Evidence of erratic driving, weaving, crossing of the centre line or evidence of a motor vehicle collision may all be used to support an inference of impaired driving. Personal observations tending to reveal signs of impairment may also be relied upon, including: an odour of alcoholic beverage emanating from the driver’s breath, bloodshot eyes, dilated pupils, unsteadiness or slurred speech.

Over 80
Unlike impaired driving, the offence of “over 80” does not require proof of impairment of any kind, only proof that the driver had a concentration of alcohol in their blood exceeding 80 milligrams of alcohol in one hundred millilitres of blood. This alcohol concentration reading is usually determined from an analysis of breath samples obtained by police and processed with a breathalyser machine capable of providing such results. These results can also be obtained by testing a sample of the driver's blood.

Refuse to Blow or Refuse to Provide a Breath Sample
The offence of refusing to provide a breath sample, either for the roadside screening device or an approved breathalyser machine at the police station is another drinking and driving offence. The consequences of a conviction on only this charge are essentially the same as those for a conviction on impaired driving or over 80, namely, a criminal conviction, driving prohibition, license suspension and the same insurance consequences.

A person convicted of refusing to provide a breath sample may also be convicted of driving while impaired. However, the rules of double jeopardy prevent convictions for both over 80 and impaired driving arising out of the same incident.

Stopping a Motorist - From traffic stop to conviction:
In Canada, provincial driving legislation such as the Highway Traffic Act in Ontario, enables police to stop and investigate drivers for drinking and driving offences. Police may also set up stop checkpoints to pull vehicles over for the purpose of checking for signs of drunk driving, known as R.I.D.E. (Reduce Impaired Driving Everywhere).

This power to investigate a driver of a motor vehicle regarding their sobriety does not permit an officer to demand a roadside breath test. In order to require a person to submit to a roadside breath test, the person under investigation must be operating or “in care or control” of a motor vehicle at the time of investigation AND the officer must reasonably suspect the person under investigation has alcohol in his or her system.

The officer may have a reasonable suspicion the person has alcohol in their body if they admit to have recently consumed alcohol or if the person under investigation demonstrates visible signs of impairment. Once the officer reasonably suspects a person to have alcohol in their system, they may require a driver to provide a sample of their breath for testing. In some instances, the failure of police to establish they had grounds to suspect alcohol had been recently consumed may amount to a defence to an over 80 or refuse breath sample charge because the unlawful breath demand would invalidate the subsequent test results.

The roadside screening test results will either return a “pass”, “warn” or “fail” result. The machine is usually calibrated to fail when a person has over 100 milligrams of alcohol in 100 millilitres of blood.

Failing the roadside test will not in and of itself support a conviction for over 80. Evidence of a failed reading is not proof of the level of alcohol in the person’s blood. It is only used to justify a further demand for a sample of breath into an “approved instrument” capable of providing a proper reading of the person’s blood alcohol level.

A “fail” result on the roadside breath test will permit an officer to arrest the driver for the offence of over 80. An arrest for over 80 may also be accompanied by an arrest for impaired driving if the driver exhibits clear signs of impairment by the manner they were driving the vehicle or physical observations of the driver under investigation.

Can I speak to a lawyer before I give a breath sample?
Upon arrest or detention, an individual is entitled to consult with a lawyer for the purpose of obtaining advice about their situation. Everyone on arrest must also be advised of the availability of a 24-hour toll-free legal aid number for those who do not have a lawyer to call but wish to obtain legal advice. If the police fail to advise a person under arrest of these constitutional rights, or fail to provide the person under arrest an opportunity to contact counsel, the failure to do so may result in the exclusion of the defendant’s alcohol level readings obtained at the police station. This exclusion of evidence would likely result in an acquittal at trial.

The right to consult with counsel is not an absolute right at the time of a roadside demand for a breath sample (as the accused is not under arrest at this time). Recent case law developments suggest that in some circumstances, a person required to provide a roadside breath sample may have a right to consult with counsel prior to providing a breath sample. In some instances, the failure to permit consultation with a lawyer prior to providing the sample may result in the exclusion of the sample and any subsequent evidence. Each situation is fact specific. An experienced criminal lawyer who regularly defends drinking and driving cases will be able to provide you with an opinion on whether or not your constitutional rights have been violated by the police during the course of their investigation.

Drinking and Driving Defences
There are a number of ways to defend against allegations of drinking and driving. The defences to these types of allegations vary, from challenging the accuracy of the machine receiving the breath sample, to challenging the officer’s belief for demanding the sample in the first place. Other defences may be raised based on the denial of constitutional rights prior to the taking of breath samples.

The area of drinking and driving case law is extremely complex and it is difficult to summarize all of the important aspects of the law in a short article. Given the numerous consequences of a drinking and driving conviction, it is important to consult with a lawyer in order to identify possible defences to the allegations. For a free initial consultation, call me at 416.297.7200 to discuss your case.
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