Perfecting Appeals

  •  (1) Subject to Rule 17(2), within 60 days after being notified that the evidence has been transcribed, or if no evidence is to be transcribed, within 60 days after the filing of the notice of appeal, an appellant shall

    • (a) serve on each party

      • (i) a copy of the appeal book, and

      • (ii) a copy of the appellant’s factum, if one is required; and

    • (b) file with the Registrar

      • (i) proof of service of the notice of appeal,

      • (ii) four copies of the appeal book,

      • (iii) the original and three copies of the appellant’s factum, if one is required, and

      • (iv) written confirmation that the appeal book and, if required, a factum have been forwarded to the respondent.

  • (2) Where the appellant is a convicted person not represented by counsel, within the time prescribed by Rule 17(1)

    • (a) the Attorney General shall file with the Registrar four copies of the appeal book;

    • (b) if the appellant files a factum, the appellant shall file with the Registrar the original and four copies of the appellant’s factum; and

    • (c) the Registrar shall forward to the respondent a copy of the appellant’s factum, if any.

  • (3) Within 30 days after receipt of the appellant’s factum, the respondent shall

    • (a) file with the Registrar the original and three copies of the respondent’s factum, if one is required; and

    • (b) serve on each party a copy of the respondent’s factum, if one is required.

  • (4) When Rule 17(1) or (2) is complied with, then, on the expiration of 30 days or on the filing of a factum by every respondent, and intervenor if any, entitled to do so, whichever shall first occur, either the appellant or a respondent may file an application to set a date for a hearing, the filing of which shall perfect the appeal.

Appeal Process

Hearing of Appeals

  •  (1) The Court may on application by any party after perfection of the appeal or at any time of its own motion, whether the appeal is perfected or not, set a time for the hearing of any appeal. If the appeal has not been perfected, the Court may direct which materials may be filed and when they may be filed.

  • (2) A perfected cross-appeal may, with leave of the Court, be set down for hearing even though the main appeal has not been perfected.

Evidence on Appeal

  •  (1) In seeking to adduce evidence on appeal under the Code, the applicant shall file an interlocutory application, which shall concisely set out the nature of the evidence sought to be adduced and the manner in which such evidence is said to bear on a decisive or potentially decisive issue at trial.

  • (2) The interlocutory application shall

    • (a) be supported by affidavit(s) as to the facts raised and to be relied on in support of the application;

    • (b) set out the order sought; and

    • (c) be accompanied by a memorandum of the points of argument and a list of authorities relied on.

  • (3) A party opposing the application shall file with the Registrar any affidavit or memorandum on which that party relies and serve a copy of it on the applicant and on any other parties. The memorandum shall contain the points of argument and a list of authorities relied on.

  • (4) Either prior to or after ruling on the admissibility of the proposed evidence, the Court may, of its own motion or that of counsel, order that the evidence be taken by oral examination before the Court, by affidavit, by commission evidence, by deposition or in any other manner that the Court directs.

Abandonment of Appeals

  •  (1) An appellant who desires to abandon an appeal shall complete a notice of abandonment of appeal in Form C, signed by the appellant or the appellant’s counsel of record on the appeal.

  • (2) The notice of abandonment shall be filed, directly or by facsimile transmission, with the Registrar and the Registrar shall forward a copy to the respondent and to the court reporter’s office.

  • (3) Where a notice of abandonment has been filed, no formal order shall be required. If requested, the Registrar may provide a certificate of abandonment of appeal.

  • (4) Except where there is a formal order dismissing the appeal, the Court may, at any time on application, grant an order permitting withdrawal of the notice of abandonment if, in its opinion, it is in the interest of justice to do so.

Failure to Appear at Hearing of Appeal

 Where a party fails to appear at the hearing of the appeal, the Court may adjourn the hearing or hear the appeal in that party’s absence.

Pre-hearing Conferences

  •  (1) At any time after the notice has been filed, the Chief Justice may direct a pre-hearing conference.

  • (2) Where a direction is made under this Rule, the parties or their counsel shall attend before a judge, at the time and place directed, to consider one or more of:

    • (a) the reduction in size of the appeal book or transcript;

    • (b) the simplification or clarification of issues in the appeal;

    • (c) the fixing of the time for the hearing of the appeal;

    • (d) the conduct of the hearing of the appeal; and

    • (e) any other matter that might expedite the appeal.

  • (3) After a pre-hearing conference, the judge who held it may make a direction on any matter referred to in Rule 22(2) and that direction shall govern the conduct of the appeal unless the Court orders otherwise.

  • (4) The judge conducting a pre-hearing conference shall not sit on the hearing of the appeal, except by request of the parties, and shall not disclose to the appeal panel positions taken or admissions or concessions made by the parties or their counsel at the conference.

Release from Custody Pending Appeal

  •  (1) An application, under the provisions of the Code, for release pending appeal shall set forth the evidence and argument to be presented in support of the requirements stipulated by the Code for release.

  • (2) The application shall be accompanied by affidavit or affidavits, including where practicable an affidavit of the applicant, setting forth

    • (a) the particulars respecting the conviction and sentence;

    • (b) any grounds of appeal not specified in the notice of appeal;

    • (c) the applicant’s

      • (i) age, marital status, and dependents if any,

      • (ii) places of abode in the three years preceding conviction,

      • (iii) proposed place of abode if released,

      • (iv) employment prior to conviction and expected employment and address of employment if released, and

      • (v) criminal record, if any; and

    • (d) where the appeal is as to sentence only, any unnecessary hardship that would be caused if the applicant were detained in custody and the reasons why leave to appeal the sentence should be granted.

  • (3) Where the Attorney General desires to assert that the detention of the applicant is necessary and to rely on material other than that contained in the material filed by the applicant, the Attorney General shall file an affidavit setting out the facts on which the Attorney General relies.

  • (4) The applicant and the Attorney General may, with leave of the Court, cross-examine on affidavits filed by the opposite party.

  • (5) A judge may dispense with the filing of the affidavits referred to in this Rule and act on a statement of facts agreed on by counsel for the applicant and the Attorney General.

  • (6) The applicant may file a concise memorandum of fact and law and any portions of the transcript of the trial or hearing that may be required, in support of the argument that the appeal or application for leave to appeal is not frivolous. The Attorney General may file in reply.

  • (7) When granting an application for judicial interim release, the judge may make a separate order requiring that the applicant is to file his or her factum within a specified time period after receipt of the transcript by the Registrar, or after release is granted, if the transcript has been filed. The factum shall not be filed after the time specified except with the leave of the Chief Justice or the Court.

  • (8) Where judicial interim release is granted, the applicant shall prepare and file with the Registrar the order for judicial interim release, any recognizance or undertaking, which may take the form provided in the Code or the Young Offenders Act, and a notice to release from custody in Form H of these Rules.

 
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