You can appeal an impaired driving conviction, and the first thing to know is that the deadline is measured in days from the decision, not months. The second is that an appeal is a review of what happened at trial, not a fresh hearing. The appeal court reads the transcript and asks whether the trial judge made an error, and being unhappy with the outcome is not an error.
New Brunswick and Nova Scotia route these appeals through different courts, and the route depends on how the Crown elected to proceed.
The Route Depends on Whether the Charge Was Summary or Indictable
Impaired driving offences are hybrid, which means the Crown chooses to proceed summarily or by indictment. That choice, made long before the trial, decides which court hears any appeal.
A summary conviction appeal goes to the superior trial court of the province, which is the Supreme Court in Nova Scotia and the Court of King’s Bench in New Brunswick. A conviction on an indictable prosecution goes directly to the provincial Court of Appeal. The Crown election chapter explains why that decision matters so much.
The Deadline Is Short and It Starts on the Day of the Decision
Notice has to be filed within a period set by the rules of the appeal court, commonly thirty days. Extensions are possible, and they are discretionary, and they require an explanation and an arguable ground of appeal.
Do not wait for the transcript to be ready before filing. File the notice first and develop the grounds afterward, because the notice can be amended and a missed deadline turns a routine appeal into an application for indulgence.
The Record Is the Trial Transcript, and New Evidence Is Rarely Admitted
An appeal court decides the case on the record that was made at trial. The transcript has to be ordered and prepared, which is the slowest part of the process and the part that determines the timetable.
Fresh evidence can be admitted, but only where it could not have been obtained with due diligence for the trial, it is relevant, it is reasonably capable of belief, and it could have affected the result. Evidence a party chose not to call is almost never admitted later.
Errors of Law Are the Strongest Ground, and Mistakes of Fact Are the Weakest
The grounds that succeed are legal ones: a wrong test applied to a Charter application, a misdirection about the presumptions that attach to breath readings, the admission of evidence that should have been excluded, or reasons so deficient that the appeal court cannot tell how the judge got there.
Findings of fact and findings about credibility attract deference. Overturning one requires showing that the judge misapprehended the evidence in a way that was material to the verdict, or that the verdict is unreasonable on the evidence as a whole. The Criminal Code sets out the appeal powers in both the summary and indictable streams.
A Sentence Appeal Is a Separate Decision and Needs Leave
The sentence can be appealed whether or not the conviction is. Because impaired driving carries mandatory minimum penalties, there is limited room to move on a first offence, and the argument usually concerns the length of the driving prohibition, ancillary orders, or a sentence above the minimum.
Appeal courts do not vary a sentence because they would have imposed something different. The test is whether the sentence is demonstrably unfit or reflects an error in principle that affected it.
You Can Ask to Stay the Driving Prohibition While the Appeal Runs
A conviction brings an immediate driving prohibition, and an appeal does not suspend it automatically. The Code contains a specific power allowing a court to stay a driving prohibition pending an appeal, on application and on conditions.
Bring that application early, because the practical value of an appeal that takes a year evaporates if the prohibition has already run its course. The same is true of any custodial sentence, where release pending appeal is a separate application with its own test.
A Guilty Plea Can Be Set Aside, but Only on Narrow Grounds
People who pled guilty at the first appearance and later learned the Crown could not have proved the case sometimes want the plea back. A court can strike a plea that was not voluntary, not unequivocal, or not informed, including where the accused did not understand a legally relevant consequence.
That application succeeds on evidence about what the accused knew and was told, not on regret. It is another reason not to plead before disclosure has been reviewed, which the resolution without a trial chapter sets out in full.
What the Firm Looks at Before Advising You to Appeal an Impaired Driving Conviction
Review starts with the transcript and the trial judge’s reasons, read against the disclosure. Most files produce one of three answers: there is an identifiable legal error to argue, there is a viable sentence appeal, or there is nothing and the money is better spent elsewhere.
You are entitled to a straight answer about which of those three applies. The firm defends and appeals DUI charges in New Brunswick and Nova Scotia. Read what we can do, and call before the notice period expires.
FAQ
Can I Appeal If I Had a Different Lawyer at Trial?
Yes, and ineffective assistance of counsel is a recognised ground. It requires proof of both incompetence and a resulting miscarriage of justice, and trial counsel is given notice and a chance to respond.
Does an Appeal Put My Licence Back?
Not by itself. You must apply for a stay of the driving prohibition pending the appeal, and the court decides that separately.
What Happens If I Win?
The appeal court can enter an acquittal or order a new trial. A new trial means the case starts again in the trial court, with the error corrected.
Can the Crown Appeal an Acquittal?
Yes, on a question of law. Crown appeals are narrower than defence appeals because the Crown cannot appeal on the facts alone.