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

Part One: Starting an Appeal

Start by delivering three copies of the Notice of Appeal and Application for Leave to Appeal (Form B) to the Office of the Registrar of the Court of Appeal. This can be done in person or by registered mail. This document cannot be faxed or e-mailed to the court.

Keep a copy of all original documents forwarded to the court for your records.There is no filing fee.

The Office of the Registrar's address is:

Office of the Registrar
Court of Appeal for Ontario
Osgoode Hall
130 Queen Street West
Toronto, Ontario M5H 2N5

Documents may be filed in person. The front desk of the Office of the Registrar is found at the southwest corner of the building.

What does the Notice of Appeal and Application for Leave to Appeal contain?

Form B sets out the information that must be included in the Notice of Appeal and Application for Leave to Appeal. Form B can be found online in the Criminal Appeal Rules.

The information that must be provided on Form B includes the offence(s) for which the appellant was convicted, the relief sought, and the grounds of the appeal.

In addition, for an appeal from a summary conviction appeal court (the Superior Court of Justice), Form B must specify:

• The name of the judge of the summary conviction appeal court
• The date of the judgment of the summary conviction appeal court
• The result of the summary conviction appeal

This additional information should be provided on Form B after paragraphs 1 to 10 (the "particulars of conviction").

What is the deadline for starting a summary conviction appeal to the Court of Appeal?

Three copies of the Notice of Appeal and Application for Leave to Appeal must be filed with the Registrar of the Court of Appeal for Ontario within 30 days after the date of the order being appealed. For an appeal of a summary conviction appeal, that would be 30 days after the order of the Superior Court of Justice. Service is effected by delivering the Notice of Appeal and Application for Leave to Appeal to the office of the Registrar or by mailing to the Registrar by registered mail three copies of the Notice of Appeal and Application for Leave to Appeal (except if the Attorney General is the appellant).

If the Notice of Appeal and Application for Leave to Appeal is served and filed by registered mail, the party must allow enough time to make any corrections to ensure that service is completed within the 30-day deadline.

What if the Notice of Appeal and Application for Leave to Appeal is not filed within the 30-day limit?

Court office staff cannot accept the Notice. However, the party wishing to appeal may obtain an order on consent or bring a motion before a single judge of the Court of Appeal for Ontario asking for an extension of the 30-day limit. For details on bringing a motion before a single judge of the Court of Appeal, you may wish to consult s. 7 of the Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario.

What happens after the Notice of Appeal and Application for Leave to Appeal is filed?

A Court of Appeal for Ontario file number will be assigned to the proceeding. That file number must appear on all further documents to be served and filed with the court. Have this file number on hand when contacting the court about the proceeding.

When are transcripts required by the Court of Appeal?

If transcripts from the original trial in the Ontario Court of Justice were filed in the summary conviction appeal court (the Superior Court of Justice) and the appellant is of the opinion that they are required for the hearing of the proposed appeal in the Court of Appeal for Ontario, those transcripts should be filed with the Court of Appeal for Ontario as part of the Appeal Book. For further details about the Appeal Book, see below.

If witnesses testified at the summary conviction appeal court and some of the testimony is relevant to the appeal, then additional transcripts from that proceeding are required. If the summary conviction appeal judge (the judge at the Superior Court of Justice) gave oral reasons, the judge's ruling may also need to be transcribed.

Legal advice may be required to properly determine what transcripts are required for an appeal of a summary conviction appeal judge.

How much do transcripts cost?

The appellant is responsible for the cost of the transcript.

Each transcript page costs a prescribed fee and the length of the transcript depends on the length of the hearing you are appealing from and the amount of transcript required for the court to properly consider the proposed grounds of appeal.

When and how should the transcripts be ordered and what must be filed with the Court of 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 must requisition 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. Use Form 4E of the Rules of Civil Procedure and state in the form that the original court papers and exhibits related to the summary conviction trial in the Ontario Court of Justice and the summary conviction appeal in the Superior Court of Justice are required. The form must be served on the Crown and then it must be filed with the Court of Appeal office with proof of service.

If the appellant is not represented by counsel, the Court of Appeal will requisition 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 an appellant needs to file additional transcripts from the summary conviction appeal hearing in the Superior Court of Justice (e.g., if additional witnesses testified in that court or if the summary conviction appeal judge gave oral reasons for decision), the transcripts must be ordered before the Notice of Appeal and Application for Leave to Appeal is filed, subject to the exceptions discussed in Rule 8 of the Criminal Appeal Rules and s. 9.2 of the Practice Direction Concerning Criminal Appeals in the Court of Appeal for Ontario.

The appellant can obtain a court transcript from the Superior Court proceeding by accessing the List of Authorized Court Transcriptionists at www.courttranscriptontario.ca and contacting an authorized court transcriptionist directly to order it. When the transcripts are ordered, the appellant must obtain a copy of a Certificate of Ordering a Transcript for Appeal from the authorized court transcriptionist. The appellant must file the Certificate of Ordering with the Notice of Appeal and Application for Leave to Appeal, subject to the exceptions discussed in Rule 8 of the Criminal Appeal Rules and s. 9.2 of the Practice Direction Concerning Criminal Appeals in the Court of Appeal for Ontario.

Perfecting an Application for Leave to Appeal and Appeal

In order to have the court consider whether to grant leave to appeal from a decision of a summary conviction appeal court judge, the appellant must serve the Attorney General, and any other party to the appeal, with the following documents:

1. an Appeal Book (including any relevant transcript from the Ontario Court of Justice proceeding)
2. Appellant's Factum
3. Transcripts from the Summary Conviction Appeal proceeding (if any)

Please note that these documents must be served before they are filed with the Court of Appeal. Proof of service is required at the time of filing.

After serving these document on the Crown, the appellant must file with the Office of the Registrar of the Court of Appeal three copies of each of the above documents, along with proof that the documents were served on the Attorney General and any other party to the appeal. Once these documents are served and filed with the court, the application for leave to appeal and appeal are considered perfected.

The appellant may file a Book of Authorities containing the authorities that are referred to in the Appellant's Factum. The appellant is not required to file a Book of Authorities. The Book of Authorities does not need to be served on the opposing parties.

All of the documents mentioned in this section are described in detail below.

Appeal Book

Under Rule 15 of the Criminal Appeal Rules, where an appellant is not represented by a lawyer, the Registrar may require the Attorney General to prepare the appeal book.

The Appeal Book is one or more bound volumes containing a collection of the documents relating to the appeal. It must be bound front and back in buff (beige) coloured covers.

Three copies of the Appeal Book must be filed with the court, with proof of service.

The contents of the Appeal Book must have consecutive page numbers and include a copy of the following items in this order:

1. a table of contents describing each document, including each exhibit, by its nature and date, and, in the case of an exhibit, identified by exhibit number or letter
2. the Notice of Appeal and Application for Leave to Appeal and any supplementary Notice of Appeal
3. any order or direction made with reference to the appeal [NOTE: If leave to appeal is granted by the Court of Appeal, the appellant does not need to file the endorsement or the order of the court granting leave to appeal. The Court will ensure that the endorsement of the panel granting leave is placed before the appeal panel.]
4. the information or indictment, including all endorsements
5. the formal order or decision appealed from (i.e. from the Superior Court of Justice and the original order from the Ontario Court of Justice), if any, as signed and entered
6. the reasons for judgment, including:
   1. the reasons for judgment from the Superior Court of Justice being appealed from, with a further typed or printed copy if the reasons are handwritten
   2. ii. the reasons for judgment from the Ontario Court of Justice that were appealed to the Superior Court of Justice, with a further typed or printed copy if the reasons are handwritten
7. any order for release from custody pending appeal and any other order suspending the operation of the sentence
8. all documentary exhibits filed at the trial arranged in order by date or, where there are documents having common characteristics, arranged in separate groups in order of date
9. all maps, plans, photographs, drawings and charts that were before the trial judge and that are capable of reproduction
10. the agreed statement of facts, if any
11. where there is an appeal as to sentence, the pre-sentence report, the criminal record of the convicted person and any exhibits filed on the sentencing proceedings
12. any notice of constitutional question served in accordance with section 109 of the Courts of Justice Act, and proof of service of the notice upon the Attorney General of Ontario and the Attorney General of Canada
13. any agreement made by the parties under subrule 8(18) of the Criminal Appeal Rules
14. the factums that were filed in the Superior Court of Justice
15. the transcript of the proceedings in the Ontario Court of Justice that was filed in the Superior Court of Justice as required for the hearing of the proposed appeal in the Court of Appeal
16. a signed Certificate of Completeness in Form 61H of the Rules of Civil Procedure stating that the contents of the Appeal Book are complete and legible.

It is helpful to separate these items with tabs to make it easier to find the material. Please note that the Court requires that the Appeal Book contains the factums that were filed in the Superior Court of Justice (see item (n) above).

A number of the items to be included in the Appeal Book will have been filed on the summary conviction appeal at the Superior Court of Justice.

With the consent of the Crown, or as directed by a judge of the Court of Appeal, some or all of the material identified in items (h)-(i) above may be omitted from the Appeal Book.

Appellant's Factum

The Appellant's Factum is a bound document containing a concise summary of the facts, the law and the arguments in support of the application for leave to appeal and the appeal.

The appellant must serve one copy of the Factum on the Attorney General and any other party to the appeal and then file three paper copies with the court, with proof of service. The appellant should also file, where possible, an electronic copy of the factum. The electronic copy can be filed by attaching it to an email sent to COA.E-file@ontario.ca. The e-mail subject line should include the name of the case and the file number and the type of document being filed. Further instructions are available online. The electronic copy of the factum may also be filed using other forms of electronic media (e.g., USB key).

The Appellant's Factum must be bound front and back in blue card stock. It cannot be more than 30 pages without the approval of a judge of the Court of Appeal. The Factum must be signed at the end. The electronic copy of a factum does not need to be signed.

The Appellant's Factum must consist of the following parts:

1. Part I, with the caption "Statement of the Case", and containing a statement identifying the appellant and the court appealed from, the nature of the charge or charges, the result in that court, and whether the proposed appeal is from conviction, conviction and sentence, acquittal or other disposition
2. Part II, with the caption "Summary of the Facts", and containing a concise summary of the facts relevant to the issues on the proposed appeal, with such reference to the transcript of evidence by page and line as is necessary
3. Part III, with the caption "Issues and Law", and containing the questions of law in relation to which leave to appeal is sought, and the factors relied on to justify granting leave to appeal. Part III should also include a statement of each issue raised on the appeal, immediately followed by a concise statement of the law and authorities relating to each issue
4. Part IV, with the caption "Order Requested", and containing a statement of the order that the court will be asked to make on the application for leave to appeal and on the appeal
5. Schedule A, with the caption "Authorities to be Cited", and containing a list of the authorities referred to, with citations, in the order in which they appear in Part III or in alphabetical order
6. Schedule B, with the caption "Relevant Legislative Provisions" setting out the text of all relevant statutes except any provisions from the Criminal Code and the Youth Criminal Justice Act

Each paragraph of the factum in Parts I-IV must be numbered.

Transcripts

Information about transcripts is provided above.

Book of Authorities

It is helpful, although not required, for the appellant to file a Book of Authorities. A Book of Authorities is a book containing copies of the cases referred to in a party's factum.

The Appellant's Book of Authorities must be bound front and back in blue covers. The appellant must then file with the Court three copies of the Appellant's Book of Authorities.

The Book of Authorities should include a tab for each case (either numerical or alphabetical), and should include a table of contents for the cases and indicate the tab where the case is reproduced. The appellant should mark with highlighting, underlining or sidebars the particular passages in the cases that are being relied on.

The Appellant's Book of Authorities should be filed no later than five business days after the Appellant's factum is filed.

What is the deadline for perfecting the application for leave to appeal and appeal?

If no transcript other than that filed at the appeal to the Superior Court of Justice is required, then the application for leave to appeal and appeal must be perfected within 60 days of filing the Notice of Application for Leave to Appeal and the Notice of Appeal.

If additional transcripts are required, then the application for leave to appeal and the appeal must be perfected within 30 days after the additional transcripts are delivered to the Court of Appeal.

What if the appellant is unable to meet the deadline for perfecting the application for leave to appeal and appeal?

There are two options:

1. Obtain the respondent's consent in writing for an extension of time to perfect and file proof of the consent with the Court of Appeal, OR
2. Bring a motion before a single judge of the Court of Appeal asking for an extension of time to perfect the appeal.

Please note that if the deadline for perfection is not met and if an extension of time is not obtained, the Office of the Registrar may send a notice to the parties advising that the matter is being placed in Perfection Status Court or Transcript Status Court, as appropriate. Status court is held in front of a single judge of the Court of Appeal. The parties may attend the status court hearing either by way of teleconference or in person. The status court judge may give directions on the timelines for perfecting the proceeding, or may place the proceeding in Purge Court, where a panel of three judges may consider whether the case should be dismissed as abandoned.

For further information about Status Court and Purge Court, please consult the Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario.