Appeal/Reopening your ticket after you have been convicted
So, you’ve been convicted and you want to appeal the decision. There are rules that have to be followed. You cannot appeal just because you didn’t like the decision. An appeal is not a “second kick at the can.” There is a time limit of 30 days from the date of conviction in which to file the appeal. If that time frame is exceeded, other procedures are available.
You have to be able to show the appeal court judge where the original hearing, justice of the peace made an error in law or that they made an error in fact or the conviction was unreasonable and cannot be supported by the evidence. Transcripts of the original proceedings will be required and the judges usually require a factum to be presented outlining the argument supported by any relevant case law. All tasks that an untrained person will have considerable difficulty in completing.
POINTTS™ Licensed Paralegals have the required skill sets to prepare and argue the appeal on your behalf. The appeal is based on the original proceedings so there is usually no requirement for you to have attend the court.
We specialize in Appeals
- We review your case and determine if you actually have grounds to appeal.
- We determine if you are within the legal time limits to appeal.
- We order transcripts (where required).
- We write the legal paper work telling the Judge what the grounds are.
- We do the legal research and attach the legal precedents.
- We file the appeal papers and serve the prosecution and the court.
- We can notify the Ministry of Transportation to have the conviction and the demerit points removed from your driving record until the appeal is finished.
- We argue your appeal in front of the appeal court which can often result in either a new trial or a complete acquittal!
If you’re not ready to face the music after the court has found you guilty and passed sentence, your only hope is an appeal.
An appeal is very different from a trial. Witnesses (such as the officer who gave you the ticket) are rarely at the appeal hearing. The court relies on the transcript of testimony from the trial and written submissions of the parties. Each party may be given limited time for oral argument.
While oral argument is the aspect most people are familiar with, it is usually the least important. More important are the written submissions. These are laid out in a factum, a highly structured document written according to convention and tradition.
Written submissions are key
Time and again, the Ontario Court of Appeal has said that the factum is the most important part of the appeal. So it is essential to have a good one. Without legal training, it would be difficult to write a persuasive factum. This is one reason why assistance is vital.
For charges prosecuted under the Provincial Offenses Act, appeals from conviction and sentence of the trial judge are heard in Ontario by a single judge of the Ontario Court of Justice.
Errors by trial judge
In an appeal, arguments are generally limited to allegation of error committed by the trial judge such as rulings on the admission of evidence. Where the appellant wants to argue that the judge got it wrong or that the accused was wrongfully convicted, he or she must prove that the verdict was “unreasonable” or not supported by the evidence. This is a very strict standard.
Types of appeal
For each of the three main categories of offenses in the Canadian justice system there is a different appeal route.
Generally, the most benign convictions are those entered under provincial law. These do not result in a criminal record. In Ontario, these are governed by the Provincial Offenses Act (POA) and include convictions for traffic violations, driving without insurance, and drinking under age.
There are two kinds of convictions under the POA: those under Parts I or II (for minor traffic offenses and parking infractions), and those under Part III, which are for more serious offenses. For convictions under Parts I or II, and for Part III convictions where the trial was before a Justice of the Peace, the appeal is to a judge of the Ontario Court of Justice. For Part III convictions where the trial was before a judge of the Ontario Court of Justice, the appeal is to a judge of the Superior Court of Justice.
You have 30 days to file a notice of appeal for Part I, II or III offenses. Unless you apply to stay the fine payment order, you must pay the fine before launching your appeal. If your driver’s license was suspended (e.g., following conviction for driving while under suspension), and you wish to drive pending appeal, you must apply for a stay of the suspension order. If you cannot pay the fine within the time given, you can apply to the court for special permission to “waive” the payment or extend the time in which to file the appeal.
Launching the appeal
To launch an appeal the first step is to file a notice of appeal. The notice must set out whether the appeal is against conviction, sentence, or both. The notice must list the grounds of appeal. The notice of appeal may have to be served on the Crown. That means that it must be sent to the Crown’s office within the time specified by the rules. Failure to meet the time limits may cost you the right of appeal. After you have served the notice on the Crown, you must file it with proof of service at the appeal court.
Common grounds of appeal
You have to identify an error of law. Common ones include:
- Judge improperly admitted evidence.
- Judge failed to give reasons for a decision.
- Judge failed to consider an important piece of evidence.
- Judge made an error in law or in fact.
- Verdict was unreasonable (no facts to support it)
- Crown asked improper questions in cross-examining the accused.
- Charter rights of the accused were violated (e.g., illegal search by police) and the judge failed to give a proper remedy (such as excluding incriminatory evidence)
- Judge was biased.
Bail pending appeal
If you appeal your conviction or sentence that involved a jail term, you can apply for bail pending appeal, that is, for release from custody until your appeal is decided. If you are out of custody, you can ask to have the conditions of your probation or conditional sentence suspended until a ruling on your appeal. Similarly, you can apply to hold off payment of a fine until the appeal is decided.
An application for bail pending appeal can be made after the notice of appeal has been filed. A hearing will be held, and bail may be granted where the presiding judge is convinced that your appeal is not frivolous, that you will surrender into custody as ordered, and that your detention is not necessary in the public interest.
Order the transcripts
During every trial in Canada, every word spoken by anybody is recorded on tape. In order to appeal a decision in Ontario, you’ll need three copies of the transcript of the proceedings. Be prepared: transcripts can be expensive.
You must also contact the trial court and request the exhibits from the trial. They will send them to the appeal court. You may borrow them to make copies. Your legal arguments should be supported by precedent (case-law). Unsupported arguments will not be taken seriously. You’ll need three copies of whatever case law you intend to present.
In an appeal, you may want to bring evidence to the court’s attention that was not relied on at trial. To do so, you must file an application to admit “fresh evidence.”
There are four requirements which must generally be fulfilled before fresh evidence will be admitted on appeal:
- The new evidence should not be admitted if, by due diligence, it could have been adduced at trial.
- The evidence must be relevant, i.e. bear upon a decisive or potentially decisive issue in the trial.
- The evidence must be credible (capable of belief)
- The evidence must be such that, if believed, it could reasonably be expected to affect the result at trial.
All of these criteria notwithstanding, where the evidence you wish to present for the first time on appeal is pivotal and proves your innocence, it will likely be admitted.
The Court generally receives fresh evidence in the form of written statements, documents or transcripts of cross-examinations. Although the appeal court can compel witnesses to testify before it, it’s more customary for the fresh evidence to be admitted by affidavit (sworn statement), accompanied by a transcript of cross-examination on the affidavit conducted by the other side.
Preparing for oral argument
The date set for your appeal will likely be a few months in the future. In the interim, you (or your paralegal or lawyer) should become very familiar with all the documents you rely upon for your appeal – that means you should know the trial transcript backwards and forwards, and know the case law you rely on inside and out.
Arguing an appeal is different than conducting a trial – when you argue an appeal, most of your time is spent answering questions the judges ask. It is impractical to prepare argument that takes up all your allotted time; a good rule of thumb is to prepare to fill about half of your time, and brace yourself for the barrage of questions.
Responding to a Crown appeal
Sometimes, the Crown will decide to appeal. Crown appeals from an acquittal are limited to questions of law. Crown appeals are subject to the same procedural steps and time limits. That means it must serve you a notice of appeal within 30 days of the decision it’s appealing. You can then expect to receive a factum and other supporting documents later.
The possible outcomes of an appeal are limited by the Provincial Offences Act. The Appeal Court can:
- Dismiss the appeal (nothing changes from the original conviction)
- Order a new trial (which must be heard by a different Justice than the one that heard your first trial)
- Order that an acquittal be registered (not guilty)
- Vary a sentence.
Release pending a new trial
If your appeal is successful, you may be granted a new trial on all or some of the issues litigated at your first trial. If so, you may apply for bail pending your new trial. The test for release would be the same as at your original bail hearing. If you were detained pending your first trial, chances are you won’t get bail pending the second one.
Finding the right Paralegal or lawyer
An appeal is governed by different rules than a trial. There are paralegals and lawyers who specialize in appeals. When choosing a paralegal or lawyer, be sure to pick one with plenty of appellate experience.