The appeal of appeals

There tends to be confusion about appealing criminal cases in Canada. Media outlets and members of the public sometimes assume that trial decisions are “not worth all that much,” largely thanks to ideas about appeals, especially that there are automatic appeals of trial-level judgements.


This perception is quite incorrect.


Before exploring the grounds to appeal a lower court’s decision, I will briefly overview Canada’s court system.

In Canada, the vast majority of criminal cases are heard in provincial courts (referred to as the Ontario Court of Justice in this province). That said, there are two main types of offences in Canada: summary offences (the Canadian equivalent to “misdemeanours,” as commonly heard in American law-related television shows) and indictable offences (our equivalent to “felonies,” meaning more serious offences).

All trials and sentencing hearings in relation to summary offences (unless these are connected to related indictable offences) take place at the provincial court level. For many indictable offences, accused individuals are given a choice to have their matters heard in provincial court or in superior court (which, in this province, is called the Ontario Superior Court of Justice). If an accused wants to be heard by a judge and jury, for example, he or she must chose to have their case heard in the superior court. The superior court has jurisdiction to hear all indictable offences and automatically acts as the trial court for the most serious crimes (like murder). (See for more.)

The Court considers an average of between 500 and 600 applications for leave to appeal each year.


Appeals of indictable offence decisions, regardless of whether the case was tried in the provincial court or the superior court, are heard by the province’s highest court (the Court of Appeal for Ontario, in this province). Differently, there is an added appeal layer for appeals of summary offence decisions, which are heard by the superior court. From there, if a further appeal follows, it would be heard by the province’s appeal court. The superior court, then, can both try indictable cases and hear summary offence appeals from the provincial court.

From the highest appeal court in the province, the last remaining level is the Supreme Court of Canada (SCC), which hears a relatively small number of cases annually. Leave to appeal is generally required by the SCC and whether leave will be granted in a particular case is often a mystery.


As explained on the SCC’s website:


Most appeals are heard by the Court only if leave is first given. Leave to appeal is granted by the Court if, for example, the case involves a question of public importance or if it raises an important issue of law (or an issue of both law and fact) that warrants consideration by the Court. The Court’s decision whether to grant leave to appeal is based on its assessment of the public importance of the legal issues raised in the case in question…

 The majority of applications for leave to appeal are decided by the Court on the basis of written submissions filed by the parties. The Court considers an average of between 500 and 600 applications for leave to appeal each year. The Court generally does not give reasons for its decisions on applications for leave to appeal. (



The only times there is an “automatic” right to appeal a criminal matter to the SCC are where one justice has dissented on a point of law from the majority decision of a court of appeal and where the provincial appeal court has overturned an acquittal.

Generally speaking, someone who has been convicted of an offence at trial (at either the provincial court or the superior court) may appeal:

(i) on any ground of appeal that involves a question of law alone,

 (ii) on any ground of appeal that involves a question of fact or a question of mixed law and fact, with leave of the court of appeal or a judge thereof or on the certificate of the trial judge that the case is a proper case for appeal, or

 (iii) on any ground of appeal not mentioned [above] that appears to the court of appeal to be a sufficient ground of appeal, with leave of the court of appeal. (See section 675(1)(a) of the Criminal Code)

The Crown has a more limited ability to appeal than a defendant; the Crown generally cannot focus its appeal on an alleged error of fact and must instead argue that the judge made an error in law. Errors of law provide virtually an automatic right to appeal while questions of fact or mixed fact and law include an extra “step”, being leave to appeal.


Practically speaking, findings of fact made by the trial judge are of the utmost importance. Appeals are not “do-overs,” as, except in very rare circumstances, appellate courts do not hear witness testimony and the trial judge’s findings of fact form part of the record – unless a clear error has been made, the trial judge’s findings will remain unchanged. Therefore, the importance of the trial itself cannot be overstated.

It is vital for all parties to put their best foot forward at trial—despite popular conceptions, there is not necessarily going to be another opportunity. In an ideal world, appeals would not be necessary; the appeal process provides a safety net, an extra check, on the justice system. That said, the maxim “If a thing’s worth doing at all, it’s worth doing well” (Evelyn Waugh) applies equally to trials.


About Katrina Trask

Katrina Trask is a graduate student at the University of Toronto’s Faculty of Law. Prior to beginning her graduate studies, she was a legal research lawyer at the Newfoundland and Labrador Court of Appeal. Katrina’s undergraduate and law degrees are both from the University of Manitoba.