How To Appeal A Traffic Ticket In Ontario

(2.1) Despite subsection (2), the notice of appeal may be filed at the same time as an application under section 85 to extend the time to give notice of appeal.  2009, c. 33, Sched. 4, s. 1 (58).

(3) 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.  R.S.O. 1990, c. P.33, s. 135 (3); 2017, c. 34, Sched. 35, s. 25.

Section Amendments with date in force (d/m/y)

136 (1) 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.

(2) An appeal shall be conducted by means of a review.

(3) In determining a review, the court may,

(a) 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;

(b) receive the evidence of any witness whether or not the witness gave evidence at the trial;

(c) require the Justice presiding at the trial to report in writing on any matter specified in the request; or

(d) receive and act upon statements of agreed facts or admissions.  R.S.O. 1990, c. P.33, s. 136.

137 (1) Where an appeal has not been proceeded with or abandoned, the court may order that the appeal be dismissed.  R.S.O. 1990, c. P.33, s. 137.

(2) Where the clerk of the court considers that an appeal has not been proceeded with or has been abandoned, the clerk may, after giving notice to the parties to the appeal, have the matter brought before a justice sitting in open court to determine whether the appeal has been abandoned and the appeal should be dismissed.  2009, c. 33, Sched. 4, s. 1 (59).

(3) A party to an appeal that was dismissed under subsection (2) may apply to have the appeal restored.  2009, c. 33, Sched. 4, s. 1 (59).

Section Amendments with date in force (d/m/y)

138 (1) 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.  R.S.O. 1990, c. P.33, s. 138 (1).

(2) 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.  R.S.O. 1990, c. P.33, s. 138 (2); 2000, c. 26, Sched. A, s. 13 (6).

(3) 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.  R.S.O. 1990, c. P.33, s. 138 (3).

Section Amendments with date in force (d/m/y)

139 (1) 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.  R.S.O. 1990, c. P.33, s. 139 (1); 2000, c. 26, Sched. A, s. 13 (6).

(2) No leave to appeal shall be granted under subsection (1) 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.  R.S.O. 1990, c. P.33, s. 139 (2).

(3) Upon an appeal under this section, the Court of Appeal may make any order with respect to costs that it considers just and reasonable.  R.S.O. 1990, c. P.33, s. 139 (3).

(4) No appeal or review lies from a decision on a motion for leave to appeal under subsection (1).  R.S.O. 1990, c. P.33, s. 139 (4).

Section Amendments with date in force (d/m/y)

Appeals Under Part III

116 (1) 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) a conviction;

(b) a dismissal;

(c) a finding as to ability, because of mental disorder, to conduct a defence;

(d) a sentence; or

(e) any other order as to costs.  2009, c. 33, Sched. 4, s. 1 (54).

(2) An appeal under subsection (1) shall be,

(a) 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

(b) where the appeal is from the decision of a provincial judge, to the Superior Court of Justice.  R.S.O. 1990, c. P.33, s. 116 (2); 2000, c. 26, Sched. A, s. 13 (5, 6).

(3) The appellant shall give notice of appeal in such manner and within such period as is provided by the rules of court.  R.S.O. 1990, c. P.33, s. 116 (3).

(4) Despite subsection (3), the notice of appeal may be filed at the same time as an application under section 85 to extend the time to give notice of appeal.  2009, c. 33, Sched. 4, s. 1 (55).

Section Amendments with date in force (d/m/y)

117 (1) The court may, where it considers it to be in the interests of Justice,

(a) order the production of any writing, exhibit or other thing relevant to the appeal;

(a.1) amend the information, unless it is of the opinion that the defendant has been misled or prejudiced in his or her defence or appeal;

(b) order any witness who would have been a compellable witness at the trial, whether or not he or she was called at the trial,

(i) to attend and be examined before the court, or

(ii) 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;

(c) admit, as evidence, an examination that is taken under subclause (b) (ii);

(d) receive the evidence, if tendered, of any witness;

(e) order that any question arising on the appeal that,

(i) involves prolonged examination of writings or accounts, or scientific investigation, and

(ii) 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; and

(f) act upon the report of a commissioner who is appointed under clause (e) in so far as the court thinks fit to do so.  R.S.O. 1990, c. P.33, s. 117 (1); 2009, c. 33, Sched. 4, s. 1 (56).

(2) Where the court exercises a power under this section, the parties or their representatives are entitled to examine or cross-examine witnesses and, in an inquiry under clause (1) (e), are entitled to be present during the inquiry and to adduce evidence and to be heard.  R.S.O. 1990, c. P.33, s. 117 (2); 2006, c. 21, Sched. C, s. 131 (18).

Section Amendments with date in force (d/m/y)

118 (1) An appellant or respondent may appear and act personally or by representative.  2006, c. 21, Sched. C, s. 131 (19).

(2) 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.  R.S.O. 1990, c. P.33, s. 118 (2).

(3) The power of a court to impose sentence may be exercised although the appellant or respondent is not present.  R.S.O. 1990, c. P.33, s. 118 (3).

Section Amendments with date in force (d/m/y)

119 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.  R.S.O. 1990, c. P.33, s. 119.

120 (1) On the hearing of an appeal against a conviction or against a finding as to the ability, because of mental disorder, to conduct a defence, the court by order,

(a) may allow the appeal where it is of the opinion that,

(i) the finding should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(iii) on any ground, there was a miscarriage of Justice; or

(b) may dismiss the appeal where,

(i) the court is of the opinion that the appellant, although the appellant was not properly convicted on a count or part of any information, was properly convicted on another count or part of the information,

(ii) the appeal is not decided in favour of the appellant on any ground mentioned in clause (a), or

(iii) although the court is of the opinion that on any ground mentioned in subclause (a) (ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of Justice has occurred.

(2) Where the court allows an appeal under clause (1) (a), it shall,

(a) where the appeal is from a conviction,

(i) direct a finding of acquittal to be entered, or

(ii) order a new trial; or

(b) where the appeal is from a finding as to the ability, because of mental disorder, to conduct a defence, order a new trial, subject to section 44.

(3) Where the court dismisses an appeal under clause (1) (b), it may substitute the decision that in its opinion should have been made and affirm the sentence passed by the trial court or impose a sentence that is warranted in law.  R.S.O. 1990, c. P.33, s. 120.

Orders on Appeal Against Acquittal

121 Where an appeal is from an acquittal, the court may by order,

(a) dismiss the appeal; or

(b) allow the appeal, set aside the finding and,

(i) order a new trial, or

(ii) enter a finding of guilt with respect to the offence of which, in its opinion, the person who has been accused of the offence should have been found guilty, and pass a sentence that is warranted in law.  R.S.O. 1990, c. P.33, s. 121; 1993, c. 27, Sched.

Section Amendments with date in force (d/m/y)

122 (1) Where an appeal is taken against sentence, the court shall consider the fitness of the sentence appealed from and may, upon such evidence, if any, as it thinks fit to require or receive, by order,

(a) dismiss the appeal; or

(b) vary the sentence within the limits prescribed by law for the offence of which the defendant was convicted,

and, in making any order under clause (b), the court may take into account any time spent in custody by the defendant as a result of the offence.

(2) A judgment of a court that varies a sentence has the same force and effect as if it were a sentence passed by the trial court.  R.S.O. 1990, c. P.33, s. 122.

123 Where one sentence is passed upon a finding of guilt on two or more counts, the sentence is good if any of the counts would have justified the sentence.  R.S.O. 1990, c. P.33, s. 123; 1993, c. 27, Sched.

Section Amendments with date in force (d/m/y)

124 (1) Judgment shall not be given in favour of an appellant based on any alleged defect in the substance or form of an information, certificate or process or any variance between the information, certificate or process and the evidence adduced at trial unless it is shown that objection was taken at the trial and that, in the case of a variance, an adjournment of the trial was refused although the variance had misled the appellant.

(2) Where an appeal is based on a defect in a conviction or an order, judgment shall not be given in favour of the appellant, but the court shall make an order curing the defect.  R.S.O. 1990, c. P.33, s. 124.

125 Where a court exercises any of the powers conferred by sections 117 to 124, it may make any order, in addition, that Justice requires.  R.S.O. 1990, c. P.33, s. 125.

126 (1) 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.  R.S.O. 1990, c. P.33, s. 126 (1); 2000, c. 26, Sched. A, s. 13 (6).

(2) Where a court orders a new trial, it may make such order for the release or detention of the appellant pending such trial as may be made by a justice under subsection 150 (2) and the order may be enforced in the same manner as if it had been made by a justice under that subsection.  R.S.O. 1990, c. P.33, s. 126 (2).

Section Amendments with date in force (d/m/y)

127 (1) Where, because of the condition of the record of the trial in the trial court or for any other reason, the court, upon the motion of the appellant or respondent, is of the opinion that the interests of Justice would be better served by hearing and determining the appeal by holding a new trial in the court, the court may order that the appeal shall be heard by way of a new trial in the court and for this purpose this Act applies with necessary modifications in the same manner as to a proceeding in the trial court.

(2) The court may, for the purpose of hearing and determining an appeal under subsection (1), permit the evidence of any witness taken before the trial court to be read if that evidence has been authenticated and if,

(a) the appellant and respondent consent;

(b) the court is satisfied that the attendance of the witness cannot reasonably be obtained; or

(c) 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.  R.S.O. 1990, c. P.33, s. 127.

128 (1) The court may, upon proof that notice of an appeal has been given and that,

(a) the appellant has failed to comply with any order made under section 110 or 111 or with the conditions of any recognizance entered into under either of those sections; or

(b) the appeal has not been proceeded with or has been abandoned,

order that the appeal be dismissed.  R.S.O. 1990, c. P.33, s. 128; 1993, c. 27, Sched.

(2) Where the clerk of the court considers that an appeal has not been proceeded with or has been abandoned, the clerk may, after giving notice to the parties to the appeal, have the matter brought before a justice sitting in open court to determine whether the appeal has been abandoned and the appeal should be dismissed.  2011, c. 1, Sched. 1, s. 7 (10).

(3) A party to an appeal that was dismissed under subsection (2) may apply to have the appeal restored.  2011, c. 1, Sched. 1, s. 7 (10).

Section Amendments with date in force (d/m/y)

129 (1) Where an appeal is heard and determined or is abandoned or is dismissed for want of prosecution, the court may make any order with respect to costs that it considers just and reasonable.

(2) Where the court orders the appellant or respondent to pay costs, the order shall direct that the costs be paid to the clerk of the trial court, to be paid by the clerk to the person entitled to them, and shall fix the period within which the costs shall be paid.

(3) Costs ordered to be paid under this section by a person other than a prosecutor acting on behalf of the Crown shall be deemed to be a fine for the purpose of enforcing its payment.  R.S.O. 1990, c. P.33, s. 129.

130 An order or judgment of the appeal court shall be implemented or enforced by the trial court and the clerk or local Registrar of the appeal court shall send to the clerk of the trial court the order and all writings relating thereto.  R.S.O. 1990, c. P.33, s. 130.

131 (1) A defendant or the prosecutor or the Attorney General by way of intervention may appeal from the judgment of the court to the Court of Appeal, with leave of a judge of the Court of Appeal on special grounds, upon any question of law alone or as to sentence.

(2) No leave to appeal shall be granted under subsection (1) 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.

(3) No appeal or review lies from a decision on a motion for leave to appeal under subsection (1).  R.S.O. 1990, c. P.33, s. 131.

132 A defendant who appeals shall, if the defendant is in custody, remain in custody, but a judge may order his or her release upon any of the conditions set out in subsection 150 (2).  R.S.O. 1990, c. P.33, s. 132.

133 Where a motion for leave to appeal is made, the Registrar of the Court of Appeal shall notify the clerk or local Registrar of the court appealed from of the motion and, upon receipt of the notification, the clerk or local Registrar of the court shall transmit to the Registrar all the material forming the record including any other relevant material requested by a judge of the Court of Appeal.  R.S.O. 1990, c. P.33, s. 133.

Application of Lower Court of Appeal Procedures, etc.

134 Sections 114, 117, 118, 119, 120, 121, 122, 123, 124, 125 and 126, clause 128 (b) and section 129 apply with necessary modifications to appeals to the Court of Appeal under section 131.  R.S.O. 1990, c. P.33, s. 134.