Inside this guide:
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
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 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.
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.
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.
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:
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.
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.
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):
Refer to Part One: Bringing an appeal
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.
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.
Refer to Part Two: Responding to an appeal.
Refer to Part Three: Hearing the application for leave to appeal
Refer to Part Three: Hearing the appeal