Guide to Appeals of Summary Conviction Appeals in the Court of Appeal for
Ontario (Non-Inmate)
Inside this guide:
Introduction
Part
One: Starting an appeal
Part
Two: Responding to an appeal
Part
Three: Hearing the application for leave to appeal
Part
Four: Hearing the appeal
Part Five: Procedures where a
stay of a driving prohibition is sought
Quick
Reference Chart: Documents Filed in appeals at the Court of Appeal
Introduction
What is an appeal of a summary conviction appeal?
An
appeal of a summary conviction appeal is a second appeal of an outcome
in a summary conviction proceeding.
A
summary conviction appeal in the Court of Appeal can occur only after:
- an offence is prosecuted "summarily"
in the Ontario Court of Justice before a judge of that court; and
- an appeal of the Ontario Court of
Justice judge's decision to the Superior Court of Justice is heard and decided.
An
appeal is different from a trial and is not a rehearing of the case. There are no
witnesses and no new evidence on an appeal (except in very limited
circumstances). Not all errors will change the outcome of a case on appeal.
An
appeal from the decision of the Superior Court judge can only be taken on a
ground that involves a question of law alone: see s. 839(1)(a) of the Criminal Code.
Is there an automatic right of appeal to the Court of Appeal for Ontario to
appeal from a summary conviction appeal judge?
No.
You must first obtain permission or leave from the Court of Appeal to have an
oral appeal hearing before a panel of three judges.
The leave to appeal requirement
To
appeal the decision of the summary conviction appeal judge (the judge of the
Superior Court of Justice who heard the first appeal), the Court of Appeal's
permission, known as "leave to appeal", is required.
Because
this is a second appeal, leave will be the exception, not the rule. The Court
of Appeal has established that leave will be granted sparingly: see R. v. R.R.,
2008 ONCA 497, at paras. 37-38f.
How does the court decide whether to grant leave to appeal?
In
appeals from summary conviction appeals that do not involve a request to
stay a driving prohibition, a three-judge panel of the Court of Appeal
decides whether to grant leave to appeal from the decision of the summary
conviction appeal judge. The decision whether to grant leave to appeal is made
based on the judges' review of written materials provided by the parties.
The
Court of Appeal will consider the following two main factors in deciding
whether to grant leave to appeal:
- The significance of the legal issues raised to the general
administration of justice; and
- The merits of the proposed grounds of appeal.
If
the issues are important to the administration of justice beyond the
appellant's individual case, leave may be granted even if the merits are not
particularly strong. If the merits are very strong but the legal issues are not
of general importance, leave may still be granted, especially if the conviction
is serious and the appellant is facing a significant loss of liberty.
What happens if leave to appeal is granted?
If
the panel decides to grant leave to appeal, then the matter will proceed to an
oral hearing that will be scheduled by the Court. The parties do not need to
file additional materials for the hearing of the appeal. The panel that is
assigned to hear the appeal will receive the written materials that were filed on
the leave application.
What are the major steps in an appeal of a summary conviction appeal judge?
The
major steps in an appeal (not including inmate appeals) from a summary
conviction appeal judge that do not involve a request to stay a driving
prohibition are summarized in the following chart (see below for the different procedures that
apply where a stay of a driving prohibition is sought):
The appellant
serves and files a combined Notice of Appeal and Application for Leave to
Appeal within 30 days of the decision of the summary conviction
appeal judge of the Superior Court of Justice.
Refer to Part One: Bringing an appeal |
If the appellant is
represented by counsel, within 14 days of filing the Notice of Appeal and
Application for Leave to Appeal, counsel for the appellant requisitions the
record in the Superior Court of Justice, including the Transcript of
the proceedings in the Ontario Court of Justice that was filed in the
Superior Court of Justice. If the appellant is not represented by counsel,
the Court of Appeal requisitions the record in the Superior Court of Justice.
If
additional transcript from the proceeding in the Superior Court of Justice is
required, (e.g., if additional witnesses testified in that court, or if the
summary conviction appeal judge gave oral reasons for decision), the
appellant files proof that these transcripts have been ordered: see also s. 9.2 of the Practice
Direction Concerning Criminal Appeals in the Court of Appeal for Ontario.
Refer to Part One:
Bringing an appeal |
The appellant
serves and files the Appeal Book, which should include any relevant
portions of the Transcript of the proceedings in the Ontario Court of
Justice, and the Appellant's Factum within 60 days after filing
the Notice of Appeal. A Book of Authorities may be filed no later than
five days after the Appellant's Factum is filed.
NOTE: If
additional transcript from the proceeding in the Superior Court of Justice is
required, the deadline for serving and filing the Appeal Book and Appellant's
Factum is within 30 days after the additional transcript has been delivered
to the Court of Appeal.
Refer to Part One:
Bringing an appeal. |
Within 60 days
after the filing of the Appellant's Factum, the respondent files the Respondent's
Appeal Book (if any) and Respondent's Factum, with proof of
service. A Book of Authorities may be filed no later than five days
after the Respondent's Factum is filed.
Refer to Part Two:
Responding to an appeal. |
The materials will
be forwarded to a panel of the court within 30 days of receipt of all
materials relating to the appeal. The panel shall decide whether to grant or
refuse leave to appeal based on the written material (no oral argument). The
parties will be notified of the decision allowing or refusing leave to
appeal.
Refer to Part Three: Hearing the application for leave to appeal |
If leave to appeal
is granted, no further materials need to be filed by the parties. The Court
will contact the parties to set a date for the hearing of the appeal. The
standard time for oral argument will be 30 minutes for the appellant and 15
minutes for the respondent. Parties requesting more time should contact the
Criminal Appeal Coordinator: see the Court of Appeal's website for contact
information.
Refer to Part
Three: Hearing the appeal |
|