Introduction

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

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