How to Appeal a DUI Conviction in Ontario
“When we believe that one of our clients has been unjustly convicted of DUI, or a judge hands down a harsh sentence beyond established norms, we'll tell the client they should consider an appeal," says TorontoDUI co-founding partner Robbie Tsang . “Being humans, judges can err in their decision-making, and the appeals process provides us the option of trying to correct such errors."
“For example," says the firm's co-partner Jeff Mass , “if a judge allowed BAC evidence from an obviously faulty breathalyzer machine to stand, we'd consider that grounds for appeal. Likewise, if a judge decided to include significant jail time in sentencing a first-time DUI offender in a case with no aggravating factors."
If you find yourself in a situation in which you believe that you've been unjustly convicted or sentenced in an Ontario DUI case, the first thing you need to know is that you'll need to react quickly. There is a strict, 30-day deadline for filing a Notice of Appeal, with the clock starting on the sentencing date.
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Important: In most Ontario DUI cases, you only have 30 days from the sentencing date to file a Notice of Appeal. Missing this deadline can seriously limit your options, so legal advice should be sought immediately. |
The second thing to know is that, given the legal complexities of the appeals process, we strongly encourage you to hire a skilled DUI criminal defence lawyer who is adept at handling appeals. Ahem, that designation would include us.
Let's review what else you need to know about appealing a DUI conviction in Ontario by answering the most frequently asked questions we hear from our clients:
On What Grounds Can I Appeal My DUI Conviction?
In Canadian criminal law, appealing a lower court decision does not represent a retrial. Instead, it's a process that seeks higher court correction of errors made during lower court proceedings. These include errors of law, errors of fact, or a combination of the two. You can appeal the conviction itself and/or the sentence. Distinct grounds frequently raised in appeals include:
- Misapplication of the law.
- Misinterpretation of the statute.
- Admitting evidence that should have been deemed inadmissible.
- The evidence was too weak to prove guilt beyond a reasonable doubt.
- Procedural unfairness or errors that impacted the outcome.
- Improper jury instruction.
- Charter Rights violations not reasonably addressed.
- The sentence is manifestly unfit, as evidenced by it falling beyond the acceptable range for similar offences and offenders.
- Failure to properly weigh mitigating and/or aggravating factors in sentencing.
- Failure to follow sentencing guidelines.
Common Grounds for Appealing a DUI Conviction or Sentence
| Appeal Ground | What It Means |
|---|---|
| Error of law | The judge applied or interpreted the law incorrectly. |
| Error of fact | The court made a serious mistake about the evidence. |
| Improper admission of evidence | Evidence was allowed when it should have been excluded. |
| Charter rights issue | The accused's constitutional rights may not have been properly addressed. |
| Weakness of evidence | The evidence may not have proven guilt beyond a reasonable doubt. |
| Unfit sentence | The sentence may fall outside the accepted range for similar cases. |
| Sentencing factor error | The court may have failed to properly weigh aggravating or mitigating factors. |
“ A DUI appeal is not a second trial. The focus is on whether legal, factual, procedural, or sentencing errors affected the outcome of the original case."
— Robbie Tsang, Co-Founder, MassTsang
Where Do I File My Notice of Appeal for a DUI Conviction?
To appeal a summary conviction DUI case, you would file your Notice of Appeal with the Ontario Superior Court of Justice. These appeals are heard in the lower court region of your original trial by a single judge.
If filing an appeal of an indictable DUI case, you file the appeal directly with the Court of Appeal for Ontario. Such appeals are typically heard by a panel of judges.
Where DUI Appeals Are Filed in Ontario
| Type of DUI Case | Appeal Court | Who Hears the Appeal |
|---|---|---|
| Summary conviction DUI | Ontario Superior Court of Justice | Single judge |
| Indictable DUI | Court of Appeal for Ontario | Panel of judges |
What Happens After I File My Notice of Appeal in DUI Cases?
Once filed, you and your defence lawyer must “perfect" your appeal. This involves serving and filing the necessary supporting materials that the court needs to consider your appeal. These materials include:
- Key documents from the lower court proceedings (known as the “appeal book").
- Trial and/or sentencing transcripts.
- Your factum, which is your written legal arguments supported by cited case law.
- Proof that you've served the Crown with your Notice of Appeal and supporting materials.
There are no statutory deadlines for perfecting one's Notice of Appeal, and it can take weeks to months to collect and prepare the materials. That said, high court procedural rules encourage timely progress. It can dismiss the appeal for delay, abandonment, or non-compliance if the appellant fails to adequately explain the reasons for the delay upon being served notice by the court.
DUI Appeal Process in Ontario
| Step | What Happens |
|---|---|
| Notice of Appeal | Filed within 30 days of sentencing. |
| Appeal record prepared | Key trial documents and transcripts are collected. |
| Factum drafted | Written legal arguments are prepared with supporting case law. |
| Crown served | The Crown receives the appeal materials. |
| Appeal perfected | Required materials are properly filed with the appeal court. |
| Appeal hearing | Lawyers present oral arguments before a judge or panel. |
| Appeal decision | The court may dismiss the appeal, order a new trial, enter an acquittal, or change the sentence. |
DUI Appeal Timeline
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DUI conviction or sentence → 30-day Notice of Appeal deadline → Appeal book, transcripts, and factum prepared → Appeal perfected → Appeal hearing → Decision: appeal dismissed / new trial / acquittal / sentence changed |
Will the Court Hold a Hearing to Adjudicate My DUI Conviction Appeal?
After you and your lawyer have perfected your Notice of Appeal, the high court will schedule a hearing. This hearing allows you and the Crown to present oral arguments to support their respective positions, with a focus on the trial record. The judge, or panel of judges, typically asks questions during this process to clarify key points of each side's position and arguments.
Can I Introduce New Evidence When Appealing My DUI Conviction?
Ontario appeals courts generally do not allow appellants to present fresh evidence on appeal. However, you can make a formal motion to introduce such evidence in limited and exceptional circumstances. In considering whether to admit such fresh evidence, the appeals court must believe that the application and supporting materials demonstrate all the following elements:
- The appellant was incapable of obtaining this evidence through reasonable diligence for use in the original trial.
- The new evidence is relevant to a potentially decisive issue in the appeal.
- The evidence is reasonably credible.
- If considered alongside the original evidence, it could have reasonably affected the trial's outcome.
“ Fresh evidence is only admitted in limited circumstances. The appeal court must be satisfied that the evidence is credible, relevant, and could have affected the result."
— Jeff Mass, Co-Founder, MassTsang
What Are the Possible Outcomes from My DUI Conviction Appeal?
The high court can render one of three primary decisions in an appeal:
- Dismiss the appeal, which upholds the original conviction and/or sentence.
- Overturn the conviction, which can result in an acquittal or an order for a new trial.
- Amend the sentence.
Other Key Considerations in DUI Conviction Appeals
Our answers to the most frequently asked questions about appealing a DUI conviction provide a broad overview of the appeals process. Here are a few other factors you need to know about your appeal:
- Filing an appeal does not automatically suspend administrative elements of your conviction, such as driving bans, fines, ignition interlock requirements, and education/treatment programs. However, you can apply to have these conditions suspended pending the appeal decision. Such applications must show merit and prove that the conditions would be moot with a successful appeal.
- If your conviction included a custodial sentence, you can seek release on bail pending the appeal decision.
- Know that if you have been acquitted in a DUI case, the Crown has the right to appeal, too. However, they typically only file such appeals in DUI cases involving injuries or death.
- Mounting a successful appeal is incredibly challenging due to the legal complexities and procedural hurdles. Hiring an experienced DUI criminal defence lawyer helps ensure that you can raise cogent legal arguments for the appeal, and properly prepare the perfecting materials in support of the appeal.
“ The appeal process is technical and deadline-driven. Acting quickly gives a defence lawyer the best chance to identify appealable issues and preserve available options."
— Robbie Tsang, Co-Founder, MassTsang
Consult with TorontoDUI to Strategize Your DUI Conviction Appeal
If you feel that a Greater Toronto Area court has unjustly convicted you of impaired driving and/or imposed an unduly harsh sentence, turn to the legal experts at TorontoDUI to determine if you have grounds for a successful appeal. For a free consultation, contact us today.
This article is for general information only and does not constitute legal advice. Anyone facing a DUI conviction or sentence should speak with a qualified criminal defence lawyer about their specific situation.
Frequently Asked Questions About Appealing a DUI Conviction in Ontario
How long do I have to appeal a DUI conviction in Ontario?
In most Ontario DUI cases, a Notice of Appeal must be filed within 30 days of the sentencing date. Missing this deadline can make the appeal process significantly more difficult, so legal advice should be sought as soon as possible.
On what grounds can I appeal my DUI conviction?
A DUI conviction may be appealed if there were errors of law, errors of fact, mixed errors of law and fact, procedural unfairness, improper admission of evidence, unresolved Charter rights issues, or a sentence that is manifestly unfit.
Where do I file a Notice of Appeal for a DUI conviction?
A summary conviction DUI appeal is filed with the Ontario Superior Court of Justice. An indictable DUI appeal is filed directly with the Court of Appeal for Ontario.
What happens after I file my Notice of Appeal?
After filing, the appeal must be perfected. This usually involves preparing and filing the appeal book, trial or sentencing transcripts, a factum, and proof that the Crown has been served with the required materials.
Will the court hold a hearing for my DUI conviction appeal?
Yes. Once the appeal is perfected, the appeal court schedules a hearing where the defence and Crown present oral arguments based primarily on the trial record.
Can I introduce new evidence when appealing a DUI conviction?
Fresh evidence is generally not allowed on appeal except in limited circumstances. The evidence must be relevant, credible, unavailable through reasonable diligence at trial, and capable of reasonably affecting the outcome.
What are the possible outcomes of a DUI conviction appeal?
The appeal court may dismiss the appeal, overturn the conviction and enter an acquittal, order a new trial, or amend the sentence.
Does filing a DUI appeal automatically suspend driving penalties or fines?
No. Filing an appeal does not automatically suspend driving bans, fines, ignition interlock requirements, or education and treatment program requirements. A separate application may be needed to suspend certain conditions pending the appeal.
