Appeals

APPEALING MY CONVICTION OR SENTENCE

If you or someone you love have been convicted of a crime under the Criminal Code or any Regulatory Offence or Professional Discipline Offence, you should consider your right to appeal but remember you have to act quickly.

You should speak to an Appeal lawyer at LAWYER UP immediately to discuss your case and find out what will be required to launch an Appeal on time. STRICT DEADLINES APPLY !

Speaking to a Criminal Appeal Lawyer at LAWYER UP will ensure that you do not miss out on any important deadlines and that your rights are fully protected.

The Process to Appeal your conviction or sentence in Ontario can be complicated but we handle that part and explain the steps to you in clear language that you can understand. Having a dedicated and competent Ontario Criminal Appeal Lawyer at LAWYER UP in your corner will make the process easier for you.

CONSEQUENCES OF CONVICTION

Convictions carry lifelong implications which you may not have been fully aware of.  Depending on your particular case some of these consequences are:

• CRIMINAL RECORD – is a stigma publicly and personally
• INCARCERATION
• RESTRICTIVE PROBATION OR PAROLE CONDITIONS
• CIVIL LAWSUITS – you may be sued

• EMPLOYMENT CONSEQUENCES – many employers require that you be bondable, have good driving records, and be of good character. Having a criminal record would make it difficult to work in many industries. You may have ongoing security or criminal checks in your current employment that may result in loss of your employment . Even for Driving records, you could be dropped from your employment if you are convicted of a substantial charge as it would increase their fleet insurance.
• INABILITY TO SUPPORT YOURSELF / YOUR FAMILY- if you are in jail or lose your driving licence or under house arrest you may not be able to work.
• DAMAGE TO YOUR CREDIT – If your work is interrupted, you will fall behind on your bills, your mortgage and vehicle payments.
• YOUR BUSINESS MAY SUFFER – If you have a Business going to jail or being on restrictive probation conditions can seriously jeopardise your business
• EDUCATIONAL RESTRICTIONS – many Colleges and Universities do not admit persons with certain Criminal Records
• IMMIGRATION CONSEQUENCES – a conviction could seriously jeopardise your ability to remain in Canada if you are not a citizen and removal / deportation proceedings would likely be commenced
• RISK OF BREAK OF PROBATION – if you are charged with another Criminal offence or BREACHING your PROBATION TERMS, you will likely face another Criminal Offence of Breach of Probation.
• EXPENSE OF APPLYING FOR A PARDON – you will have to incur the expense of applying for a Pardon many years down the road
• TRAVEL RESTRICTIONS- Having a Criminal Conviction will  create difficulty for future travel abroad alone or with your family, especially the United States and the U.K.
• PROPERTY DAMAGE CLAIM DENIED – Your own vehicle damage claim denied if you are involved in an accident.
• INSURANCE INCREASES – rate increases for 3 years – likely 100% increase. In the most severe of cases, your policy may be cancelled.
• RESTITUTION CIVIL ACTION – Collection proceedings to enforce any Restitution Order
• DRIVING PROHIBITIONS – Across Canada
• DRIVING SUSPENSIONS – within Ontario
• EXPENSIVE INTERLOCK DEVICE – if ordered
• EXPENSIVE LICENCE REINSTATEMENT FEES

TIME IS OF THE ESSENCE

Whatever you do, don’t put it off. Time is critical. There are strict deadlines.  Many documents have to be filed within 30 days of the date you received your sentence. You need to hire an appeal lawyer immediately.

What if I’ve missed the 30-day deadline?

The rule is that you must file your Notice of Appeal within 30 days of the date that your sentence was imposed.  However, if you miss this date, you will have to ask the court to extend the time to file your Notice of Appeal.

This is an extra but necessary step and we will take care of this for you.  We will prepare a Notice of Application for Extension of Time to Appeal.

Maybe you didn’t know you had a right to appeal and only learned of that right after the appeal period. Maybe you planned to appeal but let the deadline pass while you were trying to find a lawyer or raise funds.

Whatever your reason, we will file your Notice of Appeal together with your Notice of Application for Extension of Time to Appeal to move things forward.

On the application for extension of time to appeal, the key factors that the court wants to know are that you had a genuine intention to appeal within the 30-day period, and, if you did, then give the reasons why you were unable to file the Notice of Appeal in that time period.

FACTORS ON APPLICATION TO EXTEND TIME:

On an application to extend the time to appeal, the Court will consider:

• Whether you had a genuine intention to appeal before the deadline.
• Whether you told the Crown expressly or impliedly that you intended to appeal.
• Whether the Crown would be unduly prejudiced by an extension of time.
• Whether there is merit to your appeal in the sense that there is a reasonably arguable ground.
• Whether it is in the interests of justice that an extension be granted.

WHAT CAN I APPEAL?

After conviction you have a right to appeal your:

• Conviction,
• Sentence, or
• Both your Conviction and Sentence

WHAT REASONS DO I NEED TO APPEAL?

The purpose of an Appeal of conviction is not to retry your case. Appeals are not new trials. You cannot ask the Court to hear your evidence again to determine whether you should have been found guilty.   An appeal court can only set aside your conviction for one of the following three reasons:

1. The verdict was unreasonable or couldn’t be supported by the evidence.
2. There was a significant error of law
3. There was a miscarriage of justice on any grounds (basis).

(1)  Unreasonable verdict

You may appeal your conviction if the verdict was unreasonable,or couldn’t be supported by the evidence. presented. Challenging a conviction on the grounds of an unreasonable verdict focuses only on the weakness of the evidence. You must persuade the appeal court that the evidence was too weak for either a judge or reasonable jurors to find you guilty beyond a reasonable doubt.

For example, if the only evidence linking an accused to a crime came from an eyewitness who wasn’t certain she identified the correct person, the appeal court would probably consider changing the conviction.

However, it’s very difficult to succeed on these grounds for appeal. The appeal court is rarely interested in arguments about the credibility of witnesses, or the importance given to various pieces of evidence at the trial. For example, you may think the judge was wrong to believe the Crown’s witnesses instead of you or your witnesses. But that kind of appeal rarely succeeds as the Appeal Court tends to give great weight to the Trial judge in assessing credibility.

(2) Significant Error of Law

You may appeal your conviction because errors of law were made at the trial. If you can establish that significant errors of law were made that impact the outcome of the trial, your conviction may be set aside. The wrongful admission of evidence, or an improper interpretation of a Charter right, or a Misdirection (giving wrong instructions) to a jury on a crucial question of law are all examples of errors of law.

However, not all errors of law, even if proven, will lead to a successful appeal.  If the court thinks that even without the error the verdict would still have been the same, it won’t allow the appeal.   This is because Section 686 (1)(b) (iii) of the Criminal Code of Canada permits the court to dismiss an appeal when the verdict couldn’t possibly have been different.

(3) Miscarriage of Justice

You may appeal your conviction because of a miscarriage of justice. If there are errors of both fact and law that the appeal court considers to be a miscarriage of justice, your conviction will be set aside. Examples of a miscarriage of justice include:

• a jury member being biased;
• a judge refusing to provide an interpreter for an accused person who doesn’t understand English very well;
• you were not well during your trial;
• you were suffering a mental or physical health disorder that was not taken into account or affected you during your trial;
• new evidence has come to light
• You had inadequate representation by your counsel – which requires proof that your lawyer’s performance was deficient (through act or omission) such that they made serious errors amounting to incompetence; and the “deficient” performance prejudiced the defence in a way that deprived the accused of a fair trial and created a miscarriage of justice.

APPEALING MY SENTENCE

If you are only appealing your sentence, you must obtain leave (permission) to appeal. You have to show that your appeal is not frivolous and has a reasonable chance of success.

If you think your sentence is too harsh, you must convince the appeal court that the sentence is “unfit” (unreasonable). The argument and documents you give to the court (your submissions) should show one or more of the following:

1. EXCESSIVE SENTENCE:  Is the sentence fair and appropriate, given the circumstances of the offence and the background and circumstances of the offender.
2. ILLEGAL SENTENCE: The sentence is illegal under the Criminal Code or the Charter of Rights and Freedoms.
3. ERROR IN PRINCIPLE: The sentencing judge made an error in principle that impacted the sentence.  This apples to whether any significant errors were made in the application of  sentencing principles that  impacted the sentence imposed

Your appeal won’t succeed unless you can show that one of these conditions applies to your sentence. This is called the grounds (reasons) of your appeal.

(1) EXCESSIVE SENTENCE

In arguing that your sentence is excessive, we would provide the Appeal court with decisions of other Courts demonstrating that your sentence is too high compared to the length of sentences generally given for your offence with similar facts in your situation.

One of the ways we would show any sentence is excessive is to locate cases for your appeal in which the circumstances of the offence are similar to yours, the background of the accused is similar, and the appeal court reduced the sentence.

(2) ILLEGAL SENTENCE

The Criminal Code sets out the sentencing range and all possible penalties and probation terms that can be imposed for every criminal offence. Any sentence that is not authorized by the Criminal Code is illegal.

To argue an appeal on the grounds that it was an illegal sentence, you must be able to compare the exact sentence you received with the legislation that applies to your situation (usually the specific Criminal Code section), and show how your sentence doesn’t comply with the law, as in the following examples:

• If a judge orders a sentence or a combination of sentences of more than two years’ imprisonment to be followed by a probation period, the sentence is illegal as it is contrary to section 731(1) (b) of the Criminal Code which provides that a probation order may only accompany a prison sentence of two years or less.
• If a probation order is for longer than three years, it is an illegal sentence because it is contrary to section 732.2 (2) (b) of the Criminal Code.

In addition, a sentence can be considered illegal if it breaches  the protections offered in the Canadian Bill of Rights  and The Canadian Charter of Rights and Freedoms.

Section 12 of the Charter provides that “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment”

Section 7 of the Charter includes a related principle, prohibiting grossly disproportionate limitations of the right to life, liberty and security of the person.

Lastly, Section 2(b)  of the Canadian Bill of Rights provides similar protection to section 12 of the Charter.See section below “Charter of Rights to Appeal Your Sentence”

(3) ERROR IN PRINCIPLE

The principles of sentencing that every judge must consider when imposing a sentence are:

• Denunciation (public criticism) of the unlawful conduct.
• Deterrence to the offender and to others of a similar mind.
• Protection of the public.
• Rehabilitation of the offender.
• Reparation (make amends) for harm done to victims or to the community while promoting a sense of responsibility in offenders.

If a judge ignores or puts too much emphasis on one of these principles, the appeal court may consider changing the sentence. However, the fact that a trial judge has made an error in applying one of the principles of sentencing doesn’t guarantee that the appeal court will change the sentence. You must also convince the court that the error had an impact on the sentence the judge decided to impose.

Examples of a judge not properly applying the principles of sentencing would include the following:

• If an offender’s addiction to drugs has no connection to the act of committing the offence, but the judge increases the sentence to make sure the offender has enough time to complete a drug treatment program in jail.
• If a judge considered the fact that a motorcyclist had a bad back while driving impaired and treated it as an “aggravating factor” thereby increasing his sentence;
• If the judge says he or she isn’t concerned about the rehabilitation of a 19 year-old offender and imposes a sentence of two years for automobile theft when a community-based sentence may be more appropriate.

CHARTER OF RIGHTS AND YOUR SENTENCE

A sentence can be considered illegal if it breaches section 12 of the Canadian Charter of Rights and Freedoms which provides that “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”

Several points must be shown before the Charter can be used in argument:

1. That a treatment or punishment was imposed by a state actor (the Government or it’s agents)
2. That the treatment was Cruel and Unusual

1. Did the Person receive a “Treatment or Punishment”?

This is the easiest obstacle to overcome as any term of imprisonment, probation, fine etc. will constitute a treatment or punishment. Some orders of the Court and some situations may appear as Treatment or Punishment but do not qualify, and some are less clear as noted below:

• For section 12 to be engaged, the impugned measure must be a “treatment or punishment” by a Canadian state actor.
• Section 12 is violated if the treatment or punishment is “cruel and unusual”
• Section 12 prohibits the imposition of certain treatments or punishments, through a contextual assessment of “the effect that the [treatment or] punishment may have on the person on whom it is imposed” balanced against the objective for that treatment or punishment. Section 12 prohibits treatment or punishment that is “grossly disproportionate” in the circumstances; in other words, one that would “outrage our society’s sense of decency” such that Canadians would find it “abhorrent or intolerable”.
• Section 12 is not available to protect corporations as “the text ‘cruel and unusual’ denotes protection that ‘only human beings can enjoy’”.
• “punishment” for the purpose of section 12, a measure will be considered to be a punishment if it (1) is a consequence of conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence, and either (2) is imposed in furtherance of the purpose and principles of sentencing, or (3) has a significant impact on an offender’s liberty or security interests.
• Removal or deportation of a foreign national from Canada is not a punishment, but the Supreme Court has left open the possibility that removal may amount to “treatment” that engages section 12.
• Extradition from Canada is not a punishment.

WHAT ARE CONSIDERED TREATMENTS OR PUNISHMENTS UNDER S. 12 OF THE CHARTER

(Section 12 -protection from cruel and unusual punishment)

• A term of imprisonment,
• A monetary fine
• The victim surcharge, a monetary penalty imposed on offenders in addition to any other penalty, in order to fund government programs designed to assist victims of crime, is a punishment
• Detention for non-punitive reasons is a treatment — including the detention of permanent residents and foreign nationals for immigration-related reasons, as authorized under the Immigration and Refugee Protection Act
• Transfer of an inmate to administrative or disciplinary segregation is a treatment or punishment
• Other conditions of detention are also considered to be treatment, including lockdowns in remand facilities, and the overall conditions in pre-trial detention and immigration detention
• A prohibition on the possession of firearms by convicted drug offenders
• The mandatory forfeiture of firearms involved in offences is a treatment or punishment
• The taking of a DNA sample, at least where ordered as a consequence of conviction, is a treatment

2. Was the Treatment Cruel and Unusual?

If a measure engages section 12, the next question is whether it is “cruel and unusual”.

• This is a high threshold. To be cruel and unusual the treatment or punishment must be “grossly disproportionate”: meaning “so excessive as to outrage standards of decency”, and be “abhorrent or intolerable to society”.
• The threshold is not met by treatment or punishment that is “merely excessive” or disproportionate when linked to reasonable or objective community standards. This canl evolve over time.  What might have been the norm in 1940 would not be considered the norm today
• In evaluating whether a criminal sentence is a “cruel and unusual punishment” the core question is whether the sentence is “grossly disproportionate to the sentence that is appropriate, having regard to the nature of the offence and the circumstances of the offender”

DURATION OF SENTENCES

When a Section 12 Charter argument is raised alleging that Cruel and Unusual Treatment has occurred in sentencing,  the test of gross disproportionality requires that a number of factors be carefully examined and weighed against each other:

• The gravity of the offence;
• The personal characteristics of the offender;
• The circumstances of the offence;
• The effect of the sentence on the offender and other claimants;
• Whether the punishment is necessary to achieve a valid penal purpose (Is Parliament responding to a pressing problem?);
• Whether the punishment is founded on recognized sentencing principles;
• Whether valid alternatives to the punishment exist;
• Comparison with punishments for other crimes within the jurisdiction to determine proportionality;
• Comparison with punishments for similar crimes in other jurisdictions

OFFENCES WHERE HIGH MAXIMUM SENTENCES APPLY

In offences where a high maximum penalty exists, such as 10 years, 14 years or life imprisonment, but no mandatory minimum,  the Criminal Code provision will not in and of itself limit section 12’s protection from cruel and unusual punishment.  This is because if a judge has a wide range of sentencing up to a high limit, if there is any grossly disproportionate sentence handed out, any error may be corrected on appeal of sentence.

MANDATORY MINIMUM SENTENCES

In offences where mandatory minimum sentencing provisions apply, there is constant evolution in the law under Section 12 of the Charter and there are many cases constantly challenging these mandatory minimum sentences.

If you were sentenced in an offence with a mandatory minimum sentence, we would examine this closely  as there may be grounds to appeal.

In many mandatory minimum sentence cases, the sentence can be  grossly disproportionate, because:

• the judge’s hands are tied about the sentencing;
• they are restricted in applying the general principle of proportionality in sentencing

However, just because there is a mandatory minimum which ties the judge’s hands on sentencing to a degree does not automatically mean the sentence will be overruled as the Supreme Court has ruled that such provisions are not inherently contrary to section 12.

Therefore, each mandatory minimum sentencing provision must be assessed on its own merits in light of the gross disproportionality standard.

The Supreme Court has stated that “the wider the range of conduct and circumstances caught by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whom the sentence would be grossly disproportionate”

(Where there is a challenge to a mandatory minimum sentencing provision, the section 12 analysis will involve two steps:

1. “The court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code”; then
2. “The court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence”, either for the individual before the court, or for other individuals in reasonably foreseeable circumstances

MANDATORY MINIMUM SENTENCES:

Cases where found illegal

The Supreme Court has held that the following mandatory minimum sentences were contrary to section 12, because of their application in reasonably foreseeable circumstances:

• a mandatory minimum of 7 years imprisonment, for importing any quantity and any type of illegal narcotic (section 5(2) of the Narcotic Control Act, now repealed) (Smith);
• mandatory minimums — 3 years imprisonment for a first offence, 5 years imprisonment for a second or subsequent offence — for possessing loaded prohibited firearms (Nur);
• a mandatory minimum of 1 year imprisonment for possessing controlled substances for the purpose of trafficking (Lloyd).

MANDATORY MINIMUM SENTENCES:

Cases where found legal and upheld

The Supreme Court has held that the following mandatory minimum sentences were not contrary to section 12:

• a mandatory minimum of life imprisonment without parole for 25 years, for first-degree murder ( v. Luxton);
• mandatory minimum of seven days imprisonment and a $300 fine, enacted under provincial law for driving a motor vehicle while prohibited from doing so (Goltz);
• a mandatory minimum of 1 year consecutive sentence for the use of a firearm during the commission of the underlying offence of robbery ( v. Brown, [1994] 3 S.C.R. 749);
• a mandatory minimum of 4 years imprisonment, for criminal negligence causing death with a firearm (Morrisey);
• a mandatory minimum of life imprisonment without parole for 10 years, for second degree murder (Latimer);
• a mandatory minimum of 4 years imprisonment, for unlawful act manslaughter (Ferguson).

DANGEROUS OFFENDER CLASSIFICATION

If you have been designated as a Dangerous Offender,  the Courts have held that this does not unjustifiably limit section 12 of the Charter, because the sentencing judge retains discretion under the statutory provisions to apply the relevant principles and objectives of sentencing, in order to impose a fit sentence in the circumstances of the particular offender (Boutilier)

ADMINISTRATIVE SEGREGATION

(SOLITARY CONFINEMENT)

One appellate court has concluded that placements in administrative segregation for a continuous period longer than 15 calendar days infringe section 12 of the Charter (Canadian Civil Liberties Association v. Canada, Brazeau v. Canada (Attorney General), and Francis v. Ontario, 2021 ONCA 197).

MENTALLY ILL INMATES IN SEGREGATION

In the context of a class action, the Court upheld the finding that for inmates who are seriously mentally ill, a placement in administrative segregation for any duration is contrary to section 12 (Francis).

Other cases have held that segregation of an inmate is not necessarily contrary to section 12, but that it may be cruel and unusual treatment or punishment in certain instances, if it is so excessive as to outrage standards of decency (Olson), and Marriott, British Columbia Civil Liberties Association v Canada

PRE-TRIAL SEGREGATION

In one individual case, a prolonged period of administrative segregation in pre-trial detention was found to be a violation of section 12, in light of the particular conditions and the impacts on the individual (R. v. Capay)

POOR PRE-TRIAL CUSTODY CONDITIONS

It is not necessarily cruel and unusual to detain an accused person awaiting trial in conditions that are similar to those for individuals who have been convicted and are serving a sentence of imprisonment. So long as the conditions do not “outrage standards of decency”, in light of all the circumstances, section 12 is not limited by this sort of treatment. (Sanchez v. Superintendent of the Metropolitan Toronto West Detention Centre

CRIMINAL FINES, FORFEITURE and PROHIBITION ORDERS

In the case of the VICTIM SURCHARGE, the Supreme Court in  Boudreault, found a section 12 violation: the “actual imposition, operation, and effects of the mandatory surcharge, when combined, create a grossly disproportionate punishment” for certain offenders especially those who live in serious poverty, have precarious housing situations,, and struggle with addiction.

Otherwise, for all other fines or forfeiture orders, such as a forfeiture of property, these are not seen as  a violation of section 12 unless in very exceptional circumstances.

For example, appellate courts have consistently rejected section 12 challenges to the relatively high mandatory fines that can be imposed under explaining that the relatively high mandatory fines showed a degree of proportionality because “the amount of the fine was tightly linked” to the economic impacts of the offence (Pham).

Also, because many Criminal Code provisions can reduce the impact of minimum fines such as section 734.3  which permits an offender to apply for an extension of time to pay a fine.  Also, section 734.7 of the Code provides certain safeguards where imprisonment is to be applied in default of fine payment (e.g., issuing a warrant for committal only where the offender has refused to pay the fine without reasonable excuse).

Even though the mandatory forfeiture of firearms involved in offences is a treatment or punishment, it is not contrary to section 12. This measure does not have very onerous consequences on the offender, and it applies to offences with some gravity. It advances sentencing principles of general and specific deterrence, for the legitimate purpose of addressing gun crime that involves illegally held firearms (Montague, supra, at paragraphs 39-62).

MANDATORY WEAPONS PROHIBITION

A mandatory weapons prohibition under paragraph 109(1)(c) of the Criminal Code does not limit section 12.

It relates to recognized sentencing goals of protecting the public, and pursues a legitimate state interest in reducing the misuse of weapons.

It does not have a grossly disproportionate effect having regard to any reasonable hypothetical, given the ameliorative provision found in section 113 of the Criminal Code which permits the court to lift the order for sustenance or employment reasons (Wiles), (Dufour).

WE GO DEEP TO SERVE YOU

We use multiple sources to locate ALL the LAW and ALL the CASES we need to support your appeal, including:

• Martin’s Annual Criminal Code under section 687, which describes the appeal court’s powers on a sentence appeal, and under sections 718, 718.1 and 718.2, which describes the principles of sentencing;
• Decisions of Canadian Criminal Cases and Criminal Reports:
• Provincial Court of Appeal Decisions across Canada;
• Decisions of the Supreme Court of Canada;
• Sentencing by Clayton C. Ruby, and
• Our online Research Services through Westlaw

THE KEY TO OUR SUCCESS: WE GO THE EXTRA MILE

The key to our success is that we know that we have 2 opportunities to convince the Appeal Court of our position: once by written argument and then by Oral Argument.

We go the extra mile to give you the best chance at winning your appeal by preparing a strong well-written argument which is called a Factum. The Factum is critical because:

• it is the primary source for our written reasons available to the Court for information about the upcoming appeal.
• It will provide the Court with an outline of our arguments;
• it may inspire questions from the Court during the hearing;
• a well-prepared Factum makes our task as counsel easier at the Oral stage of the hearing where we can focus on really engaging with the Judges to address their concerns while we argue;
• During the hearing our Factum will provide the Court with a helpful roadmap as we proceed through the oral argument.
• The Court will appreciate a well drafted Factum as they have to take less notes and can then focus more on hearing the arguments of both sides, secure in the knowledge that the necessary pin-point, detailed references to the transcript and the authorities are contained in the Factum.
• Lastly, at the conclusion of the oral argument, the Factum is an immediate and helpful resource for the Court in the preparation and delivery of oral decisions.
• And, in any case where the Court reserves judgment at the conclusion of the oral hearing, the Factum continues to act as a silent advocate for your case.

WHAT DOCUMENTS WILL I NEED ON AN APPEAL?

As your Appeal Lawyer we will gather and prepare all required documents and file the same at the Court and argue your appeal.  The main documents we prepare are:

NOTICE OF APPEAL: This will set out what you are appealing (either conviction, sentence or both) and your grounds of appeal

TRANSCRIPTS: When we file your appeal, it is necessary that we order transcripts of your trial and sentencing, and any relevant motions in your case, immediately and provide the Court with a Certificate to confirm this at the time we file your Appeal.  We will later file the transcripts.

FACTUM:  This is our written argument that we will use in seeking to persuade the Judges on the Appeal.

COMPENDIUM OF CASES: This will be printed copies of all the relevant legal cases on each issue we are arguing in your case.

APPEAL BOOK : This will basically keep all documents in the case in one place, and contain the Notice of Appeal, Factum, any evidence and other important documents from the trial. Affidavits,  Exhibits, and other supporting material.

WHAT COURT DO I APPEAL TO?

There are two appeal Courts in Ontario:

1. ONTARIO SUPERIOR COURT : This Court would hear your Appeal from conviction of any Summary Conviction Offences  (generally minor offences such as minor property damage, minor assaults, Drive Under the Influence, or offensive behaviour).

2. COURT OF APPEAL FOR ONTARIO – This Court would hear your Appeal from conviction from any Indictable Offence such as aggravated assault, sexual assault with a weapon, drug trafficking, manslaughter.

WHEN I AM CONVICTED AND SENTENCED TO JAIL, DO I GET BAIL AUTOMATICALLY?

Normally, once an accused is found guilty at trial and receives a custodial sentence they are normally taken into custody immediately or, in exceptional circumstances, shortly afterwards.

DOES FILING AN APPEAL KEEP ME OUT OF JAIL?

No. If you are convicted and sentenced to jail you will be in jail even if you have filed an appeal.  To get out of jail an Application for Bail Pending Appeal must be filed and heard by the Court and approved on whatever conditions the Court orders.  This is similar to any other Bail hearing, but there are some differences.

WHAT IS AN APPLICATION FOR BAIL PENDING APPEAL?

This is an application to the Court made for accused who have been convicted and sentenced to jail and who are appealing their conviction and/or sentence.  This application allows them to argue that they should be released on Bail terms pending the hearing of the Appeal.

We do these all the time and are successful.

CONVICTED BUT WANT TO APPEAL?

Contact our office immediately.  There are strict timelines to appeal.  Also, we can prepare an Application for Bail Pending Appeal to keep you out of jail, or get you released, until your Appeal is heard.

CAN LAWYER UP ACT IF I HAD A DIFFERENT LAWYER ON MY TRIAL OR SENTENCING?

Yes. There is no problem with us acting for you.  An appeal lawyer at Lawyer UP can start and act on your Appeal and get going on arranging your Bail so that you don’t sit in Jail until your Appeal is heard.

In addition, if we are doing the trial and/or sentencing, or, if you contact us promptly after you are convicted,  we can rush to have all the paperwork ready to go well in advance with a strong bail plan and the legal research done so that the law supports our position.

We will forward this to the Crown in advance to seek their consent and discuss with them any concerns to make things go as smoothly as possible.

To do this takes a lot of coordination. Our goal is to avoid having any client of ours spend time in jail, or more time than absolutely necessary.

We will make arrangements for the Bail Pending Appeal to be heard promptly after the sentencing.

BENEFITS OF RELEASE ON BAIL BEFORE APPEAL IS HEARD

• The obvious one is it is better to be free than in jail
• The other main reason is that you can assist us with preparing for your appeal. We will have a lot of questions and you will have to review documents and sign affidavits.  Doing the best job for you while you are in jail is very difficult and will drive up the costs to you.
• You can also be with your family and support group and keep going to work

BAIL PENDING APPEAL

If the accused wishes to appeal their conviction or sentence or both they need to file an Appeal but that alone won’t get you out of jail. To stay out of jail after conviction and sentence it is necessary to file an Application for Bail Pending Appeal.

If LAWYER UP has done the trial and/or sentencing or, if you contact us promptly after you are convicted,  we can rush to have all the paperwork ready to go well in advance with a strong bail plan and the legal research done so that the law supports our position.

We will forward this to the Crown in advance to seek their consent and discuss with them any concerns to make things go as smoothly as possible.

To do this takes a lot of coordination. Our goal is to avoid having you spend no time in jail. We make arrangements for the Bail Pending Appeal to be heard promptly after the sentencing.

Our goal is to avoid having the accused spend then we make arrangements for the Bail Pending Appeal to be heard promptly after the sentencing.

WHAT DO I NEED TO PROVE TO GET BAIL PENDING APPEAL?

Generally, the Court must be persuaded that:

• Your appeal has enough merit (chance of succeeding) that keeping you in custody would cause unnecessary hardship.
• You will surrender yourself into custody on the date set for the hearing of your appeal.
• Keeping you in custody is not necessary in the public interest.

RECORD SUSPENSIONS AND PARDONS

If you have been convicted of any offence we can apply on your behalf for a record suspension pursuant to the Criminal Records Act. There are mandatory waiting periods after conviction before you are eligible.  Contact us and we would be happy to discuss this with you.  If you are successful in overturning your Conviction, you will have NO CRIMINAL RECORD.

CHOOSE LAWYER UP FOR YOUR APPEAL

1. We know the Law: We understand the charges you are facing and have the skill to deal with the complex legal issues in them.

2. Legal System for You: We make sure the legal system works not just for the police and the Crowns but for you !

3. We are Fast: We will be in your corner from the first call.

4. Unique Plan: We will develop with you a unique plan for your case. We will consider all of your personal factors, family, employment, immigration, travel, finances, etc.

5. We Listen; You can reach us by phone/email anytime.

6. Progress Updates: Regular progress updates on the case.

7. You are Never Alone: We communicate with you. You’ll never be in the dark.

8. Peace of Mind: Wego to Court for you so you don’t have to, except when absolutely required by the Court.

9. We Go Above and Beyond to Have your Back: We are in your Corner and dig deep, working hard and smart leaving no stone unturned to protect your rights using all legal means available.

10. Flexible Financial Plans: We’ll work out financial payments that you can manage.

11. We See the Big Picture: We’ll protect ALL of your rights. Under Canadian law you are presumed innocent until proven guilty. You are not required to prove your innocence, only raise a reasonable doubt as to your guilt, based on all the evidence before the Court.

12. We seek to minimize all negative Consequences: We try to minimize the negative effects of a conviction and criminal record on you which could expose you to civil actions, risk to employment, education, or travel plans and harm your immigration status.

13. One Stop Legal: We can deal with any spin off legal issues including your immigration, employment or any civil actions if needed so you won’t have to find another lawyer. Since we know your case you’ll save money.

15. Our Goal: We aim is to investigate the facts and to negotiate a conviction-free result for you. We always seek a conviction-free resolution with NO CRIMINAL RECORD. Secondly, we always seek to have you avoid any jail time, by looking for alternate opportunities available in sentencing other than jail. We bring to the Crown’s and Court’s attention all factors that mitigate against a harsh sentence and in the worst scenario if Jail is the only option available, we will pursue a Conditional Sentence so any time may be served under House Arrest allowing you to continue to see your family and go to work.
16. Fair treatment and Vigorous Defence : We are relentless to obtain an acquittal or resolution at the earliest opportunity for you. We do our best to ensure you receive fair treatment throughout   any allegations are vigorously defended by tough negotiation, and tough cross-examination when necessary, and by bringing all required Court Motions to protectall your legal and procedural rights from beginning to end.