How to Process an Indictable 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“. These rules are set out in the Criminal Code of Canada Part XXI.

What appeals lie to the Court of Appeal?

A person who is convicted at trial may appeal to the Court of Appeal

a) against the conviction, if it pertains to an indictable offence

(1) on any grounds of appeal based on question of law,
(2) on any grounds of appeal based on question of fact or question of fact and law with leave of the court, or
(3) on any grounds of appeal not mentioned in (1) and (2);

b) against the sentence for that conviction, with leave of the court unless that sentence is one fixed by law;
c) against an order of the Summary Conviction Appeal Court disposing of an appeal to that court;
d) against a verdict of not criminally responsible on account of mental disorder or unfit to stand trial.

Do I require a lawyer?

No. You may represent yourself at the Court of Appeal, but it is recommended that you seek legal advice where possible.

Do I have an automatic right to appeal to the Court of Appeal?

Not in all cases. In some appeals, the appellant must obtain leave to appeal. An appeal from sentence or an appeal from conviction on grounds involving mixed fact and law, for instance, require leave to appeal.

How do I apply for leave to appeal?

In most criminal appeals that require leave, the leave application 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. If it cannot be filed immediately, it must be filed within fifteen days after the notice of appeal is filed.

What is the deadline to file the notice of appeal?

The notice of appeal must be filed no later than 30 days from the sentence date. 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 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 upon 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 when, where, and how the documents were served, or by an admission by the party to be served as to the document to be filed. The applicant should also serve and file an affidavit explaining the delay.

What do I do once the notice of appeal has been filed?

The appellant must file the following documents, all of which are described below:

a) original papers/exhibits – the appellant is required to request (Form 4E) the original papers/exhibits within 14 days of filing notice of appeal and file the requisition with the Court of Appeal;
b) appeal book: 3 copies;
c) factum: 3 copies;
d) transcript: 3 copies; and
e) book of authorities: 3.

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 is not mandatory and does not have to be filed at the time the appeal is perfected. If you decide to file books of authorities, they must be served on the Crown and filed before the appeal is actually heard.

Appeal book

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:

  1. be bound front and back in buff covers;
  2. have consecutively numbered pages throughout the book or be broken up by tabs;
  3. contain a table of contents describing each document, including:

(a) the notice of appeal and any supplementary notice of appeal;
(b) the order granting leave to appeal, if any, and any order made referring to the appeal;
(c) the information or indictment including all endorsements;
(d) the order or decision appealed from, if any, as signed and entered;
(e) the reasons for judgment, if not included in the transcripts;
(f) any order for release from custody pending appeal and any other order suspending the operation of the sentence;
(g) all documentary exhibits filed at trial, arranged in order by date;
(h) all maps, plans, photographs, drawings, charts that were before trial judge and are capable of reproduction;
(i) agreed statement of facts, if any;
(j) if the appeal is from sentence, the pre-sentence report, the criminal record of convicted person and any exhibits filed on the sentencing proceedings;
(k) any notice of constitutional question with proof of service to the Attorney General of Ontario and the Attorney General of Canada;
(l) any agreement made by parties relating to transcripts required for the appeal;
(m) a certificate of perfection; and
(n) a certificate of completeness (Form 61H) stating that the contents of the appeal book are complete and legible, signed by the appellant.

Note: The appellant may, with written consent by counsel for the Crown, sign out the original papers/exhibits from the Court of Appeal office in order to prepare photocopies for inclusion in the appeal book.

Factum

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. It may not exceed 30 pages in length without leave of the court. Except in an appeal from sentence alone, the appellant’s factum must be bound front and back in blue covers. It must consist of:

  1. Part I, containing a statement identifying the appellant and the court appealed from, the nature of the charge(s), the result in that court, and whether the appeal is from conviction, conviction and sentence, acquittal or other disposition;
  2. Part II, containing a concise summary of the facts relevant to the issues on appeal, with such references to the evidence by page and line as is necessary;
  3. Part III, containing a statement of each issue raised, immediately followed by a concise argument with reference to the law and authorities relating to that issue;
  4. Part IV, containing a statement of the order that the Court of Appeal will be asked to make;
  5. Schedule A, containing list of authorities referred to in the order in which they appear in Part III; and
  6. Schedule B, setting out the text of all relevant provisions of statutes, regulations and by-laws, other than the Criminal Code.

In sentence only appeals, the factum must be in Form D.

Transcript

The transcript is prepared by the court reporter or reporters present during the trial, and is a transcript of the oral evidence given at trial. Transcripts are 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 served and filed,
b) the estimated total length of time for oral argument, and
c) the name, address, and telephone number of the respondent or of his or her lawyer.

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?

One of three things can happen:

a) the Crown can ask the court to have the appeal placed before a Court of Appeal panel to have it spoken to regarding the lack of perfection;
b) the Crown may file a motion to be heard by a single judge asking that the appeal be placed before a Court of Appeal panel to have it spoken to regarding the lack of perfection; and
c) the Registrar of the Court of Appeal can place the appeal before a panel to have it spoken to regarding the lack of perfection.

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
b) to file a motion to be heard by a Court of Appeal judge asking for an extension of time to perfect the appeal.

When will the appeal be heard?

Once the appeal is perfected, it is placed on a list of appeals ready for hearing, and the appeal is assigned a hearing date, depending upon the nature of the appeal involved and its place on the list.

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 opposing party and indicating when, where and how such delivery was made.

Indictable offence is a more serious criminal charge as distinguished from a summary offence. In some instances, the Crown may determine whether an offence will be tried “summarily” or by “indictment”.

Original papers/exhibits are documents filed at the trial or hearing of the proceeding under appeal.

Summary conviction offence is an offence of less serious nature as distinguished from an indictable offence and carries a lesser penalty.

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