Appealing a Conviction or Sentence

Appealing a Conviction or Sentence:

To understand the procedures set out for filing an appeal, you must start at Section 135 of the Provincial Offences Act, R.S.O. 1990 (hereinafter referred to as the POA” ).

It is important to know the following, if you intend to appeal your conviction or sentence:

The Ontario Provincial Offences Act(the POA) describes and is the authority with respect to the processing and prosecution and appeals related to Traffic Offences in Ontario.  The POA works hand in hand with the Highway Traffic Act of Ontario.

Appeals under Parts 1 and 2 of the POA ( POA sections 135 to 138 inclusive):

Section 135 (1) – A defendant or the prosecutor of the Attorney General by way of intervention is entitled to appeal an acquittal, conviction or sentence in a proceeding commenced by Certificate under Part I or II and the appeal shall be to the Ontario Court of Justice presided over by a provincial judge.

Section 135 (2)Application for Appeal – A notice of appeal shall be in the prescribed form and shall state the reasons why the appeal is taken and shall be filed with the clerk of the court within thirty (30) days after the making of the decision appealed from, in accordance with the rules of court.

Section 135 (3)Notice of Hearing – The clerk shall, as soon as is practicable, give a notice to the defendant and prosecutor of the time and place of the hearing of the appeal.

Section 136 (1)Court of Appeal – Upon an appeal, the court shall give the parties an opportunity to be heard for the purpose of determining the issues and may, where the circumstances warrant it, make such inquiries as are necessary to ensure that the issues are fully and effectively defined.

Section 136 (2)Review – An appeal shall be conducted by means of a review

Section 136 (3)Evidence – In determining a review, the court may:

  • hear or rehear recorded evidence or any part thereof and may require any party to provide a transcript of the evidence, or any part thereof or to produce any further exhibit;
  • receive the evidence of any witness whether or not the witness gave evidence at the trial;
  • require the justice presiding at the trial to report in writing on any matter specified in the request; or
  • receive and act upon statements of agreed facts or admissions

Section 137Dismissal on Abandonment – Where an appeal has not been proceeded with or abandoned, the court may order that the appeal be dismissed.

Section 138 (1)Power of Court on Appeal – Upon an appeal, the court may affirm, reverse or vary the decision appealed from or where, in the opinion of the court, it is necessary to do so to satisfy the ends of justice, direct a new trial.

Section 138 (2)New Trial – Where the court directs a new trial, it shall be held in the Ontario Court of Justice presided over by a justice other than the justice who tried the defendant in the first instance, but the Appeal Court may, with the consent of the parties to the appeal, direct that the new trial be held before the justice who tried the defendant in the first instance or before the judge who directs the new trial.

Section 138 (3)Cost – Upon an appeal, the court may make an order under section 60 for the payment of costs incurred on the appeal and subsection (3) thereof applies to the order.

If you appeal your conviction, this means that you were found “guilty” of some charge and you will be asking the Court to overturn (throw out) your conviction.

If you appeal your sentence (fines and costs), this means that when you were found guilty, the Court imposed, as a sanction, a fine and costs.

It is important to realize that if you only appeal the sentence (fines and costs) that you are telling the court that you agree with the conviction and only take issue with the sentence.  If you only appeal the conviction, then you telling the court that you don’t take issue with the sentence.

What is an Appeal?

Appeals are a “review” of your trial.  As a result, you may have to purchase a transcript of your trial (you will be required to order three (3) copies – One for the Provincial Judge who will hear your appeal, one for the Prosecutor who will resist your appeal and one for yourself). The Appeal Judge will review the evidence submitted at your trial and the decision of the Justice of the Peace who presided over your trial.

What are the “grounds” for an Appeal?

  • you are found “guilty”, but the Justice of the Peace provided an insufficient rationale (he/she didn’t bother to connect all the dots or the evidence with the law) for your conviction.
  • The Justice of the Peace dismissed a proper defence that was raised by yourself or your counsel (your lawyer or your paralegal).
  • Your lawyer or paralegal screwed up and neglected to provide adequate or sufficient representation in the matter.

You might as well just appeal the conviction and the sentence simultaneously (at same time)

Conviction: If you were found “guilty” then you were convicted of the charge.  This means that the conviction will be registered on the Ministry of Transportation records for a period of two (2) years from the date of the offence. If you were given a ticket on January 1, 2010 and appeared for your trial in January, 2011 and were found guilty, then the conviction will remain on your record from Jan.1, 2010 to Jan.1, 2012.  If you accumulate demerit points as a result of your conviction, those demerit points will be taken off on January 1, 2012.  For the purposes of your insurance though, the conviction will remain three (3) years from the date that you were charged.  If you were charged on Jan.1, 2010 and were found guilty in Jan. 2011, the Insurance company will keep this derogatory notation on your insurance file until January 1, 2013 or January 1, 2016 (3-6 years)!

If you were found guilty and convicted, you have a right to appeal

Before you complete the necessary paperwork (Notice of Appeal) which initiates an appeal you must first pay the fine and any associated costs and upon payment, receive a receipt which is your proof of payment.  This payment must take place within 15 days of your conviction.  You must attach this receipt (showing you made the payment) to the Notice of Appeal application, as supporting documentation.

All appeals must be filed within thirty (30) days of the conviction (see section 135 (2) ).  All appeals are heard by Provincial Judges (Ontario Courts of Justice – Provincial Offences Division)

Once you have paid your fine and costs associated with your conviction, take this receipt (as proof of payment) to the following address in Toronto (this is for appeals made in Toronto, if you are dealing with another City in Ontario – it would be the Ontario Courts of Justice Office – POA (Provincial Offences Act) office:

Ontario Courts of Justice, Provincial Offences Offices (POA)
Old City Hall
Room 5A
60 Queen Street West
Toronto, Ontario
Between the hours of 8:30 am and 4:30 pm

It is important to get to this office as early as possible, given that the Justice of the Peace (the JP) who will be swearing out your affidavit between the hours of 9 am to 4 pm.  If you arrive late, you may not be able to have the JP assist you with the affidavit and you would have to return, another day.If you make it on time and fill out the required documentation (and your receipt as proof of payment) and swear out the required affidavit, then you will receive a Notice of Time and Place of Hearing for your Appeal.

What if I lose my Appeal, does it end there?

It doesn’t have to end there.  If you lose your appeal, you can then file an additional appeal to the Ontario Court of Appeal, where in the Court will review the entire matter, including the Justice of the Peace’s decision and the decision that the Judge (in the Ontario Courts of Justice – Provincial Offences Division) made in the initial appeal.

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