How to Process an Inmate Appeal

This guide is intended to help you prepare your criminal inmate appeal. Office staff at the Court of Appeal cannot provide legal advice or complete your appeal materials on your behalf. For more information about appeals and procedures, please refer to the Criminal Appeal Rules.

What is an inmate appeal?

An inmate appeal is an appeal of a conviction, a sentence or other order made in a criminal proceeding by a person in custody, for any reason, in a provincial or federal custodial institution.

In order for an appeal to be classified as an inmate appeal, the appellant must be in custody at the time the notice of appeal is filed, and the appellant must not be represented by counsel.

If the appellant is released from custody before his or her appeal is heard, the appeal is still an inmate appeal.

If the appellant retains counsel either through Legal Aid Ontario or privately, the appeal will convert to a solicitor appeal.

If the appellant is in custody but has counsel, the appeal is a solicitor appeal. If the appellant’s counsel is subsequently removed from the record by the court and the appellant is still in custody, then the appeal will convert to an inmate appeal.

If an appellant is out of custody and is not represented by counsel, the appeal proceeds just like a solicitor appeal, except the appellant will be self-represented.

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. You may wish to complete an application for legal aid or retain counsel privately. You can contact Legal Aid Ontario by phone at 1‑800‑668‑8258.

You can also speak with duty counsel from the Pro Bono Inmate Appeal Program. Duty counsel from this program may be able to assist you in court. To learn more about the Pro Bono Inmate Appeal Program, you can contact Paul Jones, the Paralegal Co-ordinator for the program, by email at pjones@appealsdutycounsel.com, by phone at (416) 792-0695 or 1 (855) 678-3528 (toll free), or by fax at (416) 368-6640.

I do not want to argue my appeal in person in court. Can the appeal be argued in writing?

Yes. You must advise the Court of Appeal that you want to argue your appeal in writing. You can do this by writing on your notice of appeal (Form A) that you want to argue your appeal in writing. You can also write a letter to the Court of Appeal about this or advise the Court of Appeal orally during a court appearance.

After the Court of Appeal receives your request to argue your appeal in writing, the Registrar of the Court of Appeal will send you a letter telling you when you must send the Court of Appeal your written argument.

If you choose to argue your appeal in writing, rather than in person, you will not have the opportunity to have assistance from Duty Counsel in court.

Can I appeal any criminal case to the Court of Appeal?

You can appeal a criminal case to the Court of Appeal if the Crown proceeded by indictment.

You can appeal to the Superior Court if the Crown proceeded by way of summary conviction.

You can also seek leave (permission) to appeal a decision of a summary conviction appeal court to the Court of Appeal pursuant to s. 839(1) of the Criminal Code, but the appeal must be about a question of law only. Applications by inmates for leave (permission) to appeal a decision of a summary conviction appeal court to the Court of Appeal will be heard at the same time as the appeal, should leave be granted. When filling out the notice of appeal (Form A) for a summary conviction appeal matter:

  1. In the section following “I, the above named appellant, hereby give notice that I desire to appeal to the Court of Appeal against my”, you should indicate that you are seeking leave (permission) to appeal a decision of a summary conviction appeal court; and
  2. In the “Grounds of Appeal” section, you should provide the reasons why you think the Court of Appeal should grant leave (give permission) to appeal along with the reasons why you think the appeal should be allowed (granted).

How do I know if the Crown proceeded by indictment or by way of summary conviction?

If your trial was in the Superior Court of Justice, either in front of a judge alone or a judge and jury, the Crown proceeded by indictment. If your trial was in the Ontario Court of Justice, the Crown may have proceeded by indictment or by way of summary conviction. The Records Department of the institution in which you are in custody may be able to help you find the answer. The Pro Bono Inmate Appeal Program may also be able to assist.

How do I begin an appeal?

You start an appeal by filing out (Form A)  (this is the notice of appeal for inmate appeals) and delivering it to the person in charge of the institution in which you are in custody. That person is required to deliver the notice of appeal to the Registrar of the Court of Appeal.

You can ask the Records Department or Classification Office of the institution where you are in custody for a copy of Form A for you to fill out.

What is the deadline to file the notice of appeal?

The notice of appeal must be delivered to the person in charge of the institution within 30 days after the day your sentence was imposed.

What if the time to file an appeal has expired?

If a notice of appeal has not been served within the required time, you must complete the portion of Form A titled “Application for Extension of Time”.

What will happen if I do not complete the notice of appeal properly?

The Registrar of the Court of Appeal may return the notice of appeal to the institution if it has not been completely and properly prepared. Keep in mind that this will delay the processing of your appeal.

What will happen once the notice of appeal has been filed?

The Registrar of the Court of Appeal will send a copy of the notice of appeal to:

  • The trial court office requesting the original papers and exhibits; and to
  • The Ministry of the Attorney General of Ontario (Crown Law Office – Criminal) or to the Public Prosecution Service of Canada, depending on whether the case was prosecuted by the provincial Crown or the federal Crown.

After I deliver the notice of appeal to the person in charge of the institution, am I required to file any other documents?

If your appeal is proceeding in writing, you will be asked to file written submissions.

If your appeal is proceeding in person, you are not required to file any other documents besides the notice of appeal (unless you are seeking to file fresh evidence or argue ineffective assistance of counsel). The appropriate Crown’s office will gather and prepare the documents required for the appeal, including transcripts, and send them to the Court of Appeal. You will receive a copy of the documents required for the appeal in an appeal book (or series of appeal books).

When will the appeal be heard?

The appropriate Crown’s office will notify you in writing of the hearing date for the appeal. You may be required to make one or more appearances in court beforehand. You will be notified of these dates as well.

Who will make the arrangements for me to appear in court?

If the appearance will be in person, the appropriate Crown’s office will arrange for your transportation to the Court of Appeal. If the appearance will be by videoconference or audioconference, the appropriate Crown’s office will make the arrangements needed to enable you to connect to the hearing.

What if I decide not to continue the appeal?

If you decide to discontinue (abandon) the appeal, you must file a notice of abandonment with the Court of Appeal. The notice of abandonment must be signed by you and witnessed by an officer of the institution in which you are in custody or by a lawyer.

Glossary of Terms

An appeal book contains copies of all the documents that are needed for an appeal.

An appellant is the party appealing a judgment or order to the Court of Appeal.

The charge to the jury is an address delivered by the trial judge to the jury at the end of the trial, instructing the jury about the principles of the law they are required to apply in reaching their decision.

An indictment is a document that describes the charge against the accused and is the official record in the Superior Court of Justice.

An information is a document that describes the charge against the accused and is the official record in the Ontario Court of Justice.

Original papers/exhibits are documents or other things filed at the trial or hearing under appeal.

TBA means “to be argued”. When you see TBA next to a date, this means the date on which your appeal will be argued before the Court of Appeal.

TBST means “to be spoken to”. When you see TBST next to a date, this means a date on which matters relating to your appeal will be addressed before the Court of Appeal, but your appeal will not be argued on that date.

A transcript is a written record of what was said at the trial or hearing under appeal, and can include the evidence of witnesses, oral submissions by counsel and rulings made by the trial judge.

The trial court is the court where an accused was tried.

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