By Howard Krongold, Partner at AGP LLP – Appellate Counsel
Not every conviction can be overturned on appeal. Criminal appeals succeed only where a legal error, procedural unfairness, or unreasonable outcome undermines the reliability or fairness of the verdict or sentence.
This post outlines some of the most common grounds of appeal in Ontario criminal cases, and explains how appellate courts approach them.
1. Errors of law
Errors of law are among the most frequent and successful grounds of appeal. These occur where the trial judge:
- Applied the wrong legal test
- Misunderstood or misapplied binding case law
- Failed to consider a required legal element
- Relied on an incorrect legal principle
Because appellate courts review legal questions on a correctness standard, they will intervene where the law was applied incorrectly.
At AGP LLP, appellate counsel Howard Krongold regularly reviews trial decisions to determine whether an error of law occurred and whether it provides a viable basis for appeal.
2. Unreasonable verdicts
A verdict may be overturned if it is unreasonable, meaning that no properly instructed jury or judge, acting judicially, could have reached that conclusion on the evidence.
This ground does not involve re-trying the case. Instead, the appellate court examines whether the verdict is logically supported by the evidence as a whole. Unreasonable-verdict appeals often arise where:
- The key evidence is internally inconsistent
- The reasoning process is unexplained or illogical
- The verdict cannot be reconciled with the factual record
3. Misapprehension of evidence
A conviction may be set aside where the trial judge misapprehended material evidence — that is, misunderstood, overlooked, or misstated important evidence in a way that affected the outcome.
Not every factual error qualifies. The misapprehension must be significant and central to the verdict.
4. Procedural unfairness or Charter violations
Appeals may also succeed where the trial process was unfair, including where there were:
- Breaches of the right to a fair trial
- Improper admission or exclusion of evidence
- Disclosure failures
- Violations of Charter rights that were not properly remedied
In some cases, appellate courts will assess whether the error caused prejudice or whether the verdict can nonetheless be upheld.
5. Inadequate or flawed reasons
Trial judges are required to provide sufficient reasons to permit meaningful appellate review. A conviction may be overturned where the reasons:
- Fail to explain how key conflicts in evidence were resolved
- Do not demonstrate that the correct legal framework was applied
- Prevent the appellate court from understanding the basis for the decision
This ground may overlap with claims of an unreasonable verdict or a misapprehension of evidence.
6. Sentencing errors
Sentence appeals focus on whether the sentence imposed was:
- Demonstrably unfit
- Imposed based on a legal error (such as improper consideration of aggravating or mitigating factors) that affected the result.
Appellate courts generally defer to sentencing judges, but will intervene where the sentence falls outside the acceptable range or is based on an error in principle.
Final thoughts
Criminal appeals are not about disagreeing with the result. They are about identifying legal, procedural, or analytical errors that affected the fairness or reliability of the outcome.
Determining whether a viable ground of appeal exists requires careful review of the trial record, the reasons for judgment, and the governing law. Early appellate advice can help clarify whether an appeal is available and how it should be framed.
If you are considering an appeal and want to understand whether your case raises a recognized ground of appeal, you can contact AGP LLP and ask to speak with Howard Krongold about next steps.
This article is provided for general information only and does not constitute legal advice. Every case is fact-specific. If you require legal advice about your situation, you should consult a lawyer.
