How to Proceed with a Motion for Leave to Appeal in a Provincial Offences Case
A Guide for Unrepresented Persons
PDF Version
This guide gives a brief overview about how to proceed with a motion for leave to appeal to the Court of Appeal for Ontario in a provincial offences case – that is, a case prosecuted under the Provincial Offences Act, R.S.O. 1990, c. P.33. This guide does not address appeals with respect to applications for extraordinary remedies, such as certiorari. Please note that court administrative staff cannot provide legal advice or complete the documents to be filed on your motion or appeal for you. For more detailed information about appeals under the Provincial Offences Act, please refer to the Provincial Offences Act and the Rules of the Court of Appeal in Appeals under the Provincial Offences Act.
Table of Contents
No, a person must first appeal to the Ontario Court of Justice or Ontario Superior Court of Justice. This is the first-level appeal.
An appeal to the Court of Appeal is a second-level appeal, which cannot take place until a first-level appeal has concluded.
First-Level Appeal
The first level of appeal does not require a motion for leave (permission).
Generally, if you were convicted and sentenced by a justice of the peace, your first-level appeal will be heard by a judge of the Ontario Court of Justice.[1] If you were convicted and sentenced by a judge of the Ontario Court of Justice, your first-level appeal will be heard by a judge of the Superior Court of Justice. For more information about first-level appeals, you may wish to read the Ontario Court of Justice’s Guide to Appeals in Provincial Offences Cases.
Second-Level Appeal
There is no automatic right to appeal to the Court of Appeal. If a person wants to appeal a decision of a first-level appeal judge, the person must seek leave (permission) from a judge the Court of Appeal.
In general, first-level appeal judgments under the POA are intended to be final. Leave to appeal these judgments is granted only in rare cases. (The test for leave to appeal is set out in #3 below.)
If leave to appeal is denied, there is no appeal or review: see POA, ss. 131(3) and 139(4).
If leave to appeal is granted, the appeal will be heard by a panel of judges of the Court of Appeal.
The following chart illustrates the appeal process for provincial offences cases:
If your case was prosecuted by a certificate of offence or a certificate of parking infraction (Part I or Part II of the POA), you may not appeal from the dismissal. The dismissal is final: see R. v. Melaku (2011), 106 O.R. (3d) 481, 2011 CanLII 99905 (Ont. C.A., in Chambers).
If the case was prosecuted by a sworn information (Part III of the POA), you may appeal from the dismissal, but only with leave (permission) from a judge of the Court of Appeal: see R. v. A.E., 2016 ONCA 243, at para. 35. The test for granting leave to appeal from a dismissal of a motion for an extension of time is the same as the test for granting leave to appeal from a conviction. This text is set out in the next section.
For leave to appeal from a conviction, you need to establish:
For leave to appeal from a sentence, you need to establish:
These tests are set out in subsections 131(1)-(2) and 139(1)-(2) of the POA.
The meaning of “special grounds” is informed by the requirement that it is essential in the public interest or for the due administration of justice to grant leave.
To determine whether “special grounds” exist, the judge hearing the motion for leave to appeal will consider all the circumstances of the case and determine whether it is essential in the public interest or for the due administration of justice to grant leave. Some factors that could be relevant to this determination include:
A “question of law alone” means a question that is only about a legal principle. The legal principle could come from a constitutional or statutory provision, a regulation or the common law (judge-made law).
You may wish to review the decisions of the Court of Appeal that discuss the test for leave to appeal. Some of these cases are:
You may also wish to consider seeking legal advice. Here is a link to the Court of Appeal’s webpage about getting legal assistance in criminal matters: https://www.ontariocourts.ca/coa/how-to-proceed-court/criminal-matters/legal-assistance/.
Yes, the Court of Appeal has rules about how to proceed with provincial offences appeals. They are set out in the Rules of the Court of Appeal in Appeals under the Provincial Offences Act, O.Reg. 721/94 (“POA Rules”).
Applying for leave to appeal is sometimes called “making a motion for leave to appeal”.
To apply for leave to appeal to the Court of Appeal, an unrepresented person (whether in custody or not) must:
√ Complete a notice of motion in Form 2.
A copy of the notice of motion in Form 2 is found in the Forms section of this document. If you are in custody, the senior official of the institution is required to provide you with a copy of Form 2 upon request.
On the notice of motion (Form 2) you will set out the information about the trial and the first-level appeal, as well as the grounds (reasons) you are seeking leave to appeal. You will also indicate if you want to present your case and argument for leave to appeal in person (that is, before a judge of the Court of Appeal) or in writing.
When you sign your completed notice of motion (Form 2), please also include your name, address, telephone number and email address. Please note: it is your responsibility to notify the court of any changes in your address, telephone number or email address so that information can be conveyed to you in a timely manner. Failing to do so may result in a delay or dismissal of your case.
√ Serve the notice of motion (Form 2) on the prosecutor (and the Crown, if the prosecutor is not acting on behalf of the Crown) within 30 days after the date of the decision or order you are seeking leave to appeal.
“Serving” means giving materials to the other parties.
If you are in custody, you serve the notice of motion (Form 2) by delivering it to the senior official of the institution. The senior official of the institution will forward the notice of motion to the Registrar of the Court of Appeal. The Registrar of the Court of Appeal will provide the notice of motion to the other parties.
If you are not in custody, you must serve the notice of motion (Form 2) by leaving a copy of it with the prosecutor and, if the prosecutor is not acting on behalf of the Crown, with the Crown Law Office (Criminal) of the Ministry of the Attorney General as well. They are the responding party(ies) on the motion.
The address of the Crown Law Office (Criminal) for service is:
Crown Law Office (Criminal) Ministry of the Attorney General 720 Bay Street, 10th Floor Toronto, Ontario M7A 2S9 Telephone Number: (416) 326-4600 Fax: (416) 326-4656 Email: EserviceCLOC@ontario.ca[2]
To obtain the address of the prosecutor’s office, please contact the prosecutor of your trial directly or contact the court where your trial was held.
The notice of motion (Form 2) must be served within 30 days of the date of the order or decision you are trying to appeal. If you are not within that 30-day deadline, you must apply for an extension of time by completing the designated section in Form 2. A single judge of the Court of Appeal will decide whether to grant an extension of time. If the extension of time is denied, your motion for leave to appeal is also denied.
√ File the notice of motion (Form 2), with proof of service, in the office of the Registrar of the Court of Appeal within 5 days after service.
“Filing” means giving materials to the court.
For more information about filing at the Court of Appeal, please go to this page: https://www.ontariocourts.ca/coa/how-to-proceed-court/filing/. When filing, you must show proof that you have already served the materials on the other party(ies). Examples of proof include an affidavit of service (see Form 16B under the Rules of Civil Procedure) or a lawyer’s written acceptance of service.
√ Decide how you wish to present your argument.
Argument is what you write or say to try to convince the court to accept your position on the motion or appeal. As discussed below, you can present your argument by filing written submissions, called a factum, or you can present your argument by making oral submissions in person.[3]
√ If you ARE in custody; and
√ If you ARE NOT in custody, file, with proof of service, a motion record and relevant transcripts of evidence within 30 days of filing the notice of motion for leave to appeal (Form 2), whether or not you want to present your argument in writing or in person; and
A motion record contains the following documents arranged in the following order and on consecutively numbered pages:
A motion record, if produced in paper format, must be bound with a light blue back sheet. The parts of the motion record may be divided by numbered tabs so long as the pages of the whole motion record are consecutively numbered.
The responding party can also file a motion record if they think your motion record is incomplete. If they choose to file a motion record, the opposing party must serve you with a copy of it and file the motion record within five days after being served with your motion record and transcripts of evidence.
Transcripts of evidence are ordered from a certified transcriptionist. For more information about ordering transcripts, go to: https://www.attorneygeneral.jus.gov.on.ca/english/courts/court transcripts.asp. For those without access to the internet, the toll-free number for further information is 1-800-645-8113.
Transcripts of evidence for use on a motion, if produced in paper format, must have a light grey back sheet.
After your written argument is filed with the court, the judge will review it. The judge will either dismiss your motion with written reasons explaining why they dismissed it, or they will ask the responding party to provide written argument in response to yours. The Registrar will provide you with a copy of the responding party’s written argument. If you want, you can reply to the responding party’s written argument by filing reply written argument. If you choose to make reply submissions, you must file them within 7 days of when you received the responding party’s written argument. The judge will consider the written argument from the parties and will make a decision in writing about whether to grant or dismiss the motion for leave to appeal. The Registrar will send you the judge’s decision.
The responding party has the right to appear at the oral argument of your motion for leave to appeal. Usually, you, as the one applying for (asking for) leave to appeal will make your argument about why leave to appeal should be granted first. Then, the responding party will have an opportunity to make their argument about why leave to appeal should not be granted. After that, if the judge thinks it necessary, they may ask for further argument from you in reply to the responding party’s arguments.
After listening to the parties’ arguments, the judge will either make a decision on the motion for leave to appeal right away, or they may reserve their decision (take more time to make their decision). If the judge reserves their decision, once they make their decision, the Registrar will notify you and provide you with a copy of the judge’s decision.
If you cannot attend on the date the Registrar has set for the hearing of your motion for leave to appeal, first ask the responding party if they would agree to an adjournment (a rescheduling) of the date. Next, send a letter to the Court of Appeal asking for the adjournment and include in your letter whether the responding party is agreeing (consenting) or not to the adjournment. Please make sure that the responding party is copied on the letter.
If you do not appear for the hearing of your motion, your motion for leave to appeal may be dismissed as abandoned by the presiding judge.
No, the decision of the judge of the Court of Appeal for Ontario on a motion for leave to appeal is final. This means if leave to appeal is denied, there is no appeal or review: see POA, ss. 131(3) and 139(4).
⮚ If your motion for leave to appeal is granted and you are in custody, to continue with the appeal, you must:
√ Complete a notice of appeal in Form 3 and deliver it to the senior official of your institution within 10 days of the date of the order granting leave to appeal.
A copy of a notice of appeal in Form 3 is found at the end of this document. The senior official of the institution is required to provide you with a copy of Form 3 upon request. The senior official will forward your completed notice of appeal in Form 3 to the Registrar of the Court of Appeal. The Registrar of the Court of Appeal will provide it to the other parties.
If you are not within the 10-day deadline, you must apply for an extension of time by completing the designated section of Form 3. The judge considering your application may or may not ask for a written response from the respondent. If the judge asks the respondent for a written response, the Registrar will provide you with a copy of the written response that is submitted. You may make written submissions in reply within 7 days after receipt of the respondent’s written response. Once the judge makes a decision on your application, they will put the decision and reasons for it in writing and the Registrar will send you a copy.
On the notice of appeal in Form 3 you will set out the information about the trial and the first-level appeal, as well as the grounds (reasons) for the appeal.[4] You will also indicate whether you want to present your argument in person (that is, before a panel [a group of three judges] of the Court of Appeal) or in writing.
If you want to present your argument in person, the Registrar will set a date for the appeal hearing, and arrangements will be made for you to appear before the court.
If you want to present your case and argument in writing, you have the right to present further written submissions within 14 days after receiving the appeal book, or you may include your written argument with your notice of appeal.
Please note: it is your responsibility to notify the court of any changes in your address, telephone number or email address so that information can be conveyed to you in a timely manner. Failing to do so may result in a delay or dismissal of your case.
Unless excused by the Registrar, the Attorney General or counsel for the prosecutor is responsible for preparing the appeal book. Your copy of the appeal book will be mailed to you.
⮚ If your motion for leave to appeal is granted and you are NOT in custody, to continue with the appeal, you must:
√ Complete a notice of appeal in Form 4.
A copy of a notice of appeal in Form 4 is found at the end of this document. On the notice of appeal in Form 4 you will set out the information about the trial and the first-level appeal, as well as the grounds (reasons) for the appeal[5] and the relief (the result) you are asking for.
When you sign the notice of appeal in Form 4, please also include your name, address, telephone number and email address. Please note: it is your responsibility to notify the court of any changes in your address, telephone number or email address so that information can be conveyed to you in a timely manner. Failing to do so may result in a delay or dismissal of your case.
√ Serve the notice of appeal on the prosecutor (and the Crown, if the prosecutor is not acting on behalf of the Crown) within 10 days after the date of the decision or order you are seeking leave to appeal.
You must serve a copy of the notice of appeal on the prosecutor and, if the prosecutor is not acting on behalf of the Crown, on the Crown Law Office (Criminal) of the Ministry of the Attorney General as well. They are the respondent(s) in the appeal.
Crown Law Office (Criminal) Ministry of the Attorney General 720 Bay Street, 10th Floor Toronto, Ontario M7A 2S9 Telephone Number: (416) 326-4600 Fax: (416) 326-4656 Email: EserviceCLOC@ontario.ca[6]
To obtain the address of the prosecutor, please contact the court where your trial was held.
If you are not within the 10-day deadline, you must apply for an extension of time by making a notice of motion to extend time. The notice of motion must be served on the respondent(s). For more information about bringing motions, here is a link to the Court’s webpage on this topic (note: for this purpose, a provincial offences appeal is considered a civil appeal): https://www.ontariocourts.ca/coa/how-to-proceed-court/civil-family/motions-in-civil-family-appeals/.
√ File the notice of appeal, a certificate of the court reporter stating that copies of the transcripts required for the hearing of the appeal have been ordered or an undertaking in Form 5 that transcripts will be filed within 30 days after filing the notice of appeal.
For more information about filing at the Court of Appeal, please go to this page: https://www.ontariocourts.ca/coa/how-to-proceed-court/filing/. When filing, you must show proof that you have already served the materials on the other party(ies). Example of proof include an affidavit of service (see Form 16B under the Rules of Civil Procedure) or a lawyer’s written acceptance of service.
Except for appeals about sentence only, “the transcripts required for the hearing of the appeal” are transcripts of the evidence heard at the trial and of any evidence heard at the first-level appeal. Unless a judge orders otherwise or the respondent consents, the transcript does not include final argument and objections to the admissibility of evidence (except for a notation that an objection was made and a brief summary of the nature of the objection and the position of the parties). The judge’s ruling and reasons about objection will be in the transcript. Alternatively, within 30 days after service of the notice of appeal, the parties can make a signed agreement about the transcript required for the appeal and file it with the Registrar. This signed agreement must be included in the appeal book.
For appeals about sentence only:
Transcripts for an appeal, if produced in paper format, must be bound front and back in red covers.
√ Prepare the appeal book.
The appeal book contains the following documents arranged in the following order and on consecutively numbered pages:
To obtain copies of exhibits and other documents filed in the trial court and first-level appeal court, contact the Registrar.
If produced in paper format, the appeal book must be bound front and back in buff covers.
Where an appellant is not represented by a lawyer, the Registrar may require the Attorney General or the lawyer for the prosecutor to prepare the appeal book.
√ Prepare the appellant’s factum.
A factum is a written summary of the facts, issues, law and the party’s argument in support of its position.
The appellant’s factum should be titled “Appellant’s Factum” on its cover page. If produced in paper format, the factum must be bound front and back in blue covers. The text of the factum must be printed, typewritten, written or reproduced legibly on one side only with double spaces between the lines and a margin of approximately 40 millimetres on the left-hand side. The characters must be at least 12 point or 10 pitch in size. The factum must be signed by you and dated. The length of the factum cannot exceed 30 pages unless the Registrar or a judge has given permission. The factum must also contain the following sections:
If the appeal is only about sentence, the factum must be in Form 6. A copy of Form 6 is at the end of this document.
√ “Perfect” (get the appeal ready for hearing) the appeal by:
√ Be aware of these deadlines for perfection:
These deadlines can be extended by the Registrar or a judge.
If you do not perfect within these deadlines, the Registrar may serve notice on you that the appeal will be placed before the court to be dismissed as abandoned unless the appeal is perfected within 10 days after the service of the notice. The respondent may also ask the Registrar to place the appeal before the court to be dismissed as abandoned if you fail to perfect on time.
√ Prepare a book of authorities, serve a copy on each party to the appeal (and any person entitled by statute or court order to be heard on the appeal) and then file the book of authorities with the court no later than Thursday in the week before the week in which the appeal is scheduled to be heard.
Book of Authorities contain copies of past legal cases and extracts from secondary sources that are relevant to the issues and that are cited in the factum. The Book of Authorities usually has a table of contents listing all of the cases and sources contained in it.
The book of authorities must only contain those authorities (cases, excerpts from textbooks, etc.) that you intend to refer to in oral argument, and you should mark (highlight, underline, put a vertical line next to [also known as side-barring], etc.) the specific passages in each authority that you intend to refer to. If the book of authorities is produced in paper, it must be bound front and back in blue covers.
After you perfect the appeal (get the appeal ready for hearing) and file the certificate of perfection, the Registrar will set the date for the appeal hearing and notify you of the date.
The respondent’s factum is required to be served and filed no later than 10 days before the week in which the appeal is to be heard.
You must serve and file the book of authorities (see section above) no later than Thursday in the in the week before the week in which the appeal is scheduled to be heard.
The appeal hearing will be heard by a panel of three or five judges. After listening to the parties’ arguments, the judges will either make a decision right away, or they may reserve their decision (take more time to make their decision). If they reserve their decision, once they make their decision, the Registrar will notify you and provide you with a copy of the reasons for decision.
If you want to present your appeal in writing, you need to advise the court in writing. You can do this on the notice of appeal or on a separate document, such as a letter to the Registrar.
If you are in custody and you have indicated to the court that you want to present your appeal in writing, you have the right to present further written submissions within 14 days after receiving the appeal book, or you may include your written argument with your notice of appeal.
If you are NOT in custody and you have indicated to the court that you want to present your appeal in writing, you still need to file all the material that would otherwise be required for an oral appeal (including the appeal book and the transcript) except you do not have to file a factum. Instead, you must file your written argument within 30 days after you have filed the material that would otherwise be required for an oral appeal.
The court may or may not require written argument from the respondent. If it does, you will be given a copy of the written argument submitted by the respondent, and you will be given 14 days in which to provide reply submissions should you wish to provide any.
Even though you have asked to present your appeal in writing, the court may direct that the appeal be listed for oral hearing. If this happens, you will be given notice that you may attend and make oral submissions.
Once the court makes its decision, the Registrar will notify you and provide you with a copy of the reasons for decision.
If you are in custody, and if leave to appeal is granted, you may apply for release from custody pending your appeal. You must give two clear days’ notice of your application to the respondent unless the respondent consents to, and a judge or the Registrar permits, a shorter period of notice. Your application must also contain an affidavit or affidavits, including where practicable your own affidavit, establishing:
If you do not want to go ahead with your appeal anymore, you must prepare a notice of abandonment (Form 61K of the Rules of Civil Procedure), sign it, and have your signature verified by affidavit or witnessed by a lawyer or an officer of the institution in which you are in custody. Then, if you are in custody, you must deliver the notice of abandonment to the senior official of your institution. If you are not in custody, you must serve a copy of the notice of abandonment on the prosecutor and, if the prosecutor is not acting on behalf of the Crown, on the Crown Law Office (Criminal) of the Ministry of the Attorney General as well, and then file a copy of the notice of abandonment with proof of service with the Registrar.
An order for the payment of “costs” in an appeal usually means an order that the losing party in the appeal pay some or all of the wining party’s legal fees and expenses for the appeal. Even though the POA allows for the court to make an order for the payment of costs in an appeal, the general rule is that no costs are awarded in a proceeding under the POA.
Provincial Offences Act, R.S.O. 1990, c. P.33 For Cases Commenced by a Certificate (Part I and Part II of the POA):
Appeal to Court of Appeal
139 (1) An appeal lies from the judgment of the Ontario Court of Justice in an appeal under section 135 to the Court of Appeal, with leave of a judge of the Court of Appeal, on special grounds, upon any question of law alone.
Grounds for leave
(2) No leave to appeal shall be granted under subsection (1) unless the judge of the Court of Appeal considers that in the particular circumstances of the case it is essential in the public interest or for the due administration of justice that leave be granted.
Costs
(3) Upon an appeal under this section, the Court of Appeal may make any order with respect to costs that it considers just and reasonable.
Appeal as to leave
(4) No appeal or review lies from a decision on a motion for leave to appeal under subsection (1).
For Cases Commenced by a Sworn Information (Part III of the POA):
131 (1) A defendant or the prosecutor or the Attorney General by way of intervention may appeal from the judgment of the court to the Court of Appeal, with leave of a judge of the Court of Appeal on special grounds, upon any question of law alone or as to sentence.
(3) No appeal or review lies from a decision on a motion for leave to appeal under subsection (1).