TRAFFIC TICKETS: APPEAL
So, you were found guilty and convicted, but you are unhappy with the outcome and think you had a strong defence. You might consider appealing. There may be many reasons for that:
- May be there were insufficient reasons given for finding you guilty
- May be poor representation by a lawyer or paralegal
- May be the conviction was too harsh
- May be there was an obvious mistake made
- May be you plead guilty without being properly informed
- May be Justice of the Peace did not pay enough attention to the evidence you provided him with
If you think you would have a good case for appeal that is worth fighting for, but have no idea how to apply for it – call CPsolutions. We can help. We know very well that appeals are tricky, time consuming and usually overwhelming even for professionals. Don’t waste your nerves and time!
To file an appeal
You must file an appeal on a Part I matter within 15 days of the conviction date and within 30 days of the conviction date on Part III matters. The fine must be paid in full or an application to file an appeal without paying the fine must be completed before filing the appeal. If you are past the allotted time, you may also apply for an extension of time to appeal under Section 85 of the Provincial Offences Act. A Provincial Judge must grant both the application to file appeal without paying the fine and the application for extension of time to appeal. Appeal documents may be obtained from any Ministry of the Attorney General Court office.
What is an appeal?
An appeal is a process for requesting a formal change to an official decision. The right to appeal a court’s decision is an important safeguard in Canadian legal system. In most cases, a decision made at one level of the court system can be appealed to a higher level. The higher court may deny leave to appeal, affirm or reverse the original decision. In some cases, it will order a new trial.
The specific procedures for appealing and the nature of an appeal can vary greatly depending on the type of case. An appellate court is a court that hears cases on appeal from another court. Depending on the particular legal rules that apply to each circumstance, a party to a court case who is unhappy with the result might be able to challenge that result in an appellate court on specific grounds. These grounds typically could include errors of law, fact, or procedure.
Three types of appeal
Under the Provincial Offences Act of Ontario, there are three types of appeal:
- Acquittal: where the prosecution feels strongly you should not have been acquitted
- Conviction: if you strongly believe you were wrongfully convicted, an appeal may result in an overturned verdict
- Sentence: if you believe the sentence was too harsh
The Provincial Offences Act about appeal
Payment of fine before appeal
A notice of appeal by a defendant shall not be accepted for filing if the defendant has not paid in full the fine imposed by the decision appealed from.
Payment of fine not waiver
A person does not waive the right of appeal by reason only that the person pays the fine or complies with any order imposed upon conviction.
Fixing of date where appellant in custody
Where an appellant is in custody pending the hearing of the appeal and the hearing of the appeal has not commenced within thirty days from the day on which notice of the appeal was given, the person having custody of the appellant shall make a motion to a judge to fix a date for the hearing of the appeal.
Appeals, proceedings commenced by information
Where a proceeding is commenced by information under Part III, the defendant or the prosecutor or the Attorney General by way of intervention may appeal from,
- a conviction;
- a dismissal;
- a finding as to ability, because of mental disorder, to conduct a defense;
- a sentence; or
- any other order as to costs
An appeal shall be,
- where the appeal is from the decision of a Justice of the Peace, to the Ontario Court of Justice presided over by a provincial judge; or
- where the appeal is from the decision of a provincial judge, to the Superior Court of Justice.
Notice of appeal
The appellant shall give notice of appeal in such manner and within such period as is provided by the rules of court.
Conduct of appeal
The court may, where it considers it to be in the interests of justice,
- order the production of any writing, exhibit or other thing relevant to the appeal; amend the information, unless it is of the opinion that the defendant has been misled or prejudiced in his or her defense or appeal;
- order any witness who would have been a compellable witness at the trial, whether or not he or she was called at the trial, to attend and be examined before the court, or to be examined in the manner provided by the rules of court before a judge of the court, or before any officer of the court or justice of the peace or other person appointed by the court for the purpose;
- admit, as evidence, an examination that is taken;
- receive the evidence, if tendered, of any witness;
- order that any question arising on the appeal that, involves prolonged examination of writings or accounts, or scientific investigation, and cannot in the opinion of the court conveniently be inquired into before the court, be referred for inquiry and report, in the manner provided by the rules of court, to a special commissioner appointed by the court.
Rights of parties
Where the court exercises a power under this section, the parties or their representatives are entitled to examine or cross-examine witnesses and are entitled to be present during the inquiry and to adduce evidence and to be heard.
Right to representation
An appellant or respondent may appear and act personally or by representative.
Attendance while in custody
An appellant or respondent who is in custody as a result of the decision appealed from is entitled to be present at the hearing of the appeal.
Sentencing in absence
The power of a court to impose sentence may be exercised although the appellant or respondent is not present.
An appellant or respondent may present the case on appeal and argument in writing instead of orally, and the court shall consider any case or argument so presented.
Where a court orders 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 unless the appeal court directs that the new trial be held before the justice who tried the defendant in the first instance.
The court may permit the evidence of any witness taken before the trial court to be read if that evidence has been authenticated and if,
- the appellant and respondent consent;
- the court is satisfied that the attendance of the witness cannot reasonably be obtained; or
- by reason of the formal nature of the evidence or otherwise the court is satisfied that the opposite party will not be prejudiced, and any evidence that is read under the authority of this subsection has the same force and effect as if the witness had given the evidence before the court.
APPEALS UNDER PARTS I AND II
Appeals, proceedings commenced by certificate
A defendant or the prosecutor or 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.
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 30 days after the making of the decision appealed from, in accordance with the rules of court.
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.
Conduct 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.
In determining a review, the court may,
- hear or rehear the 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.
Dismissal on abandonment
Where an appeal has not been proceeded with or abandoned, the court may order that the appeal be dismissed.
Motion to restore
A party to an appeal that was dismissed may apply to have the appeal restored.
Powers 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.
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.
Appeal to Court of Appeal
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
No leave to appeal shall be granted 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.
As a summary, we would like to say that contrary to common belief, an appeal is not a new trial; it is a REVIEW of your first trial. You have to be well prepared before filing an appeal. You have to request and purchase 3 copies of your first trial transcripts (the transcript is a written record of everything that was said in Court). And etc. etc. etc.
As you can see, the process of appeal requires experience, time and lots of paperwork. Actually, the appeal is an uphill battle. Trust CPsolutions with your problem and we will provide you with the best solution possible.