Rule 91 — Criminal Appeal (SI/2009-3)

Regulations are current to 2014-09-01

Rule 91 — Criminal Appeal

SI/2009-3

CRIMINAL CODE

Registration 2009-01-21

Rule 91 — Criminal Appeal

The Nova Scotia Court of Appeal, pursuant to section 482Footnote a of the Criminal CodeFootnote b, hereby makes the annexed Rule 91 — Criminal Appeal.

Halifax, Nova Scotia, December 31, 2008

THE HONORABLE MICHAEL MACDONALD
Chief Justice of the Nova Scotia Court of Appeal

Definitions

  •  (1) In this Rule,

    “appeal”

    “appeal” means an appeal under Part XXI of the Code, section 839 of the Code, or legislation that incorporates provisions of the Code for procedure on an appeal and includes an application for leave to appeal and an appeal contingent on leave being granted; (appel)

    “appellant”

    “appellant” means a person who brings an appeal; (appelant)

    “Attorney General”

    “Attorney General” has the same meaning as in section 2 the Code, except it includes the Director of Public Prosecutions, Her Majesty the Queen as represented in an appeal, and counsel on behalf of the Attorney General, the Director of Public Prosecutions, or Her Majesty the Queen; (procureur général)

    “Chief Justice”

    “Chief Justice” means the Chief Justice of Nova Scotia; (juge en chef)

    “Code”

    “Code” means the Criminal Code; (Code)

    “Court of Appeal”

    “Court of Appeal” means the Nova Scotia Court of Appeal; (Cour d’appel)

    “judgment”

    “judgment” means a conviction, finding of guilt, acquittal, order staying a proceeding, sentence, verdict of unfit to stand trial, verdict of not criminally responsible on account of mental disorder, a decision or order of a summary conviction appeal court, and includes any other decision or order from which an appeal is available to the Court of Appeal; (jugement)

    “prisoner appeal”

    “prisoner appeal” means an appeal by a person who is in prison when the appeal is started and who is not represented by counsel, and the appeal ceases to be a prisoner appeal when the person is released or retains counsel; (appel d’un détenu)

    “prothonotary”

    “prothonotary” means a person appointed by the Minister of Justice of the Province of Nova Scotia as a prothonotary of the Supreme Court of Nova Scotia; (protonotaire)

    “registrar”

    “registrar” means the person appointed by the Minister of Justice of the Province of Nova Scotia as the registrar of the Nova Scotia Court of Appeal, and includes a deputy, assistant or associate registrar; (greffier)

    “sentence appeal”

    “sentence appeal” means an appeal in which the appellant only appeals a sentence. (appel de la peine)

  • (2) The interpretation and definition sections of the Code shall apply to this Rule.

Scope of Rule 91

  •  (1) This Rule is made under subsections 482(1) and (3) of the Code.

  • (2) The Civil Procedure Rules as a whole and in particular Rule 90 apply to this Rule with any necessary modifications and when not inconsistent with this Rule.

  • (3) The procedures in Rule 90 for motions made to a judge of the Court of Appeal and to the Court of Appeal apply to motions made under this Rule.

Effect of non-compliance with rules

 Non-compliance with this Rule 91 shall not render any proceeding void, but the proceeding may be amended or may be set aside as an irregularity or otherwise dealt with as may be just.

Extension of time

  •  (1) Any time prescribed by this Rule may be extended or abridged by a judge of the Court of Appeal or the Court of Appeal before or after the time has expired.

  • (2) A person who seeks an extension or abridgment of a time period in the Code or this Rule may make a motion to a judge of the Court of Appeal or the Court of Appeal under a provision in the Code, such as subsection 678(2), under Rule 2 - General, or under subsection (1) of this Rule.

Starting an appeal

  •  (1) A person may start an appeal by filing a notice of appeal with the registrar.

  • (2) The notice of appeal must be entitled “Notice of Appeal”, be dated and signed, and include all of the following:

    • (a) a notice that the appellant appeals from a judgment, including the kind of judgment, the names of the judge and court whose judgment is being appealed from, and the date of the judgment;

    • (b) an application for leave to appeal referred to in Rule 91.08, if leave is required;

    • (c) the names of counsel who represented the parties before the court appealed from or a statement that a party was not represented;

    • (d) a description of the offence that was charged and the section reference for the offence;

    • (e) details of the plea that was entered and any sentence that was imposed;

    • (f) a reference to the statutory authority for the appeal, a concise statement of the grounds for appeal, and a concise description of the order to be sought at the conclusion of the appeal;

    • (g) a statement of whether a party is in prison and, if so, the place of imprisonment;

    • (h) if there is only one appellant, an address for delivery of documents to the appellant and, if there is more than one appellant, a designation of a single address for delivery to all or separate addresses for each;

    • (i) an acknowledgement that documents delivered to the designated address are considered received by the appellant, and a statement that further contact information is available from the registrar.

  • (3) The notice of appeal may be in Form 91.05(A) or, where the appellant is not represented by a solicitor, may be in Form 91.05(B).

  • (4) The senior official of every penal institution must supply to any prisoner in his custody, upon request, a copy of the notice of appeal in Form 91.05(B) for the prisoner’s use.

Contact information

 A party to an appeal must designate an address for delivery and provide to the registrar the further contact information referred to in Rule 82.08 of Rule 82 - Administration of Civil Proceedings.

Prisoner appeal

 Where a prisoner appeal is commenced and the appellant subsequently retains a solicitor, the solicitor shall immediately notify the registrar and the respondent of the retainer and thereafter all relevant Rules relating to appeals through solicitors apply to the appeal.

Applying for leave to appeal

 A person who wishes to bring an appeal for which leave of the Court of Appeal is required may file a notice of appeal and include the application in it.

Deadline for starting an appeal

  •  (1) For the purpose of sections 678 and 839 of the Code, a person may start an appeal of a judgment by filing a notice of appeal no more than 25 days after one of the following:

    • (a) the day the appellant is sentenced, if the appeal is from a conviction, finding of guilt, or sentence, or both a conviction or finding of guilt and a sentence;

    • (b) the day a judgment is made, if the appeal is from an acquittal or other judgment that is not a conviction, finding of guilt, or sentence.

  • (2) The period is calculated under Rule 94.02 of Rule 94 - Interpretation, and it is subject to being extended under section 678 of the Code or Rule 91.04.

Filing and delivery of notice of appeal

  •  (1) An appellant, other than an appellant in a prisoner appeal, must do each of the following:

    • (a) provide the registrar with two copies of the notice of appeal when the original is filed;

    • (b) cause a copy of the notice of appeal to be delivered to each respondent before the deadline in Rule 91.09(1), by personal service or by another method of giving notice permitted by a judge;

    • (c) provide the registrar with proof of service of the notice of appeal;

    • (d) send a copy of the notice of appeal to the judge from whose judgment the appeal is brought.

  • (2) A prisoner who wishes to start a prisoner appeal must, by the deadline in Rule 91.09(1), deliver the original of the notice of appeal, two copies for the registrar, and one copy for each respondent to the senior official of the institution in which the appellant is imprisoned.

  • (3) A senior official to whom a notice of appeal in a prisoner appeal is delivered must certify the date of delivery on the notice, cause the notice and two copies to be delivered to the registrar, and cause the other copy to be delivered to the respondent.

  • (4) The registrar must send a copy of a prisoner’s notice of appeal to the judge from whose judgment the appeal is brought.

Cross-appeal

  •  (1) A respondent may cross-appeal by filing a notice of cross-appeal.

  • (2) The notice of cross-appeal must be entitled “Notice of Cross-Appeal”, be dated and signed, and include all of the following:

    • (a) the same file number as the notice of appeal and a heading with the names of the cross-appellant and cross-respondent;

    • (b) a notice that the respondent cross-appeals from a judgment, including the nature of the judgment, the names of the judge and court whose judgment is being appealed from, and the date of the judgment;

    • (c) an application for leave to cross-appeal referred to in Rule 91.08, if leave is required;

    • (d) a reference to the statutory authority for the cross-appeal, a concise statement of the grounds of cross-appeal, and a concise description of the order to be sought at the conclusion of the appeal;

    • (e) if there is only one respondent who cross-appeals, an address for delivery of documents to the appellant and, if there is more than one appellant, a designation of a single address for all or separate addresses for each;

    • (f) an acknowledgment that documents delivered to the designated addresses are considered received by the respondent, and a statement that further contact information is available from the registrar.

  • (3) A notice of cross-appeal must be filed and delivered no more than 25 days after the day a copy of the notice of appeal was delivered to the respondent who wishes to cross-appeal.

  • (4) Unless inconsistent with this Rule 91.11, Rules 91.05(2), 91.08, 91.09(2), and 91.10 apply to a cross-appeal as if “appeal” read “cross-appeal” and “appellant” read “respondent who cross-appeals”.

Setting time for appeal hearing and deadlines for filing documents

  •  (1) An appellant, or in a prisoner appeal the Attorney General, must make a motion to a judge of the Court of Appeal to appoint a time and date for the appeal to be heard and to provide directions for the appeal, including when the transcript, appeal book, and factums are to be filed.

  • (2) The motion to appoint a time and date and provide directions must be scheduled by the appellant or Attorney General to be heard no more than 80 days after the day the notice of appeal is filed.

  • (3) A judge of the Court of Appeal may on his or her own motion set a time for the hearing of any appeal, whether perfected or not, and if the appeal has not been perfected may direct what appeal book or factums or other material shall be filed.

Certificate of readiness

 An appellant, or in the case of a prisoner appeal the Attorney General, must file a certificate of readiness that complies with Rule 90.26 in support of the motion for directions under Rule 91.12(1) no less than five days before the motion is to be heard.

Obtaining transcript

  •  (1) An appellant, or in the case of a prisoner appeal the Attorney General, must request a copy of the audio recording of the proceeding from the prothonotary or clerk of the court whose judgment is being appealed from, and pay the prescribed fee to the prothonotary or clerk.

  • (2) The prothonotary or clerk, on receipt of the prescribed fee from the appellant or the Attorney General, must provide the appellant or the Attorney General with an audio recording of the entire hearing of the proceedings, including evidence, the oral submissions, the jury charge, and all oral rulings and decisions.

  • (3) The appellant, or in the case of a prisoner appeal the Attorney General, must cause a transcript of the proceeding to be prepared by a certified court reporter in compliance with subsection 682(4) of the Code.

Appeal book

  •  (1) An appeal book must be in the same format as an appeal book under Rule 90.30(3).

  • (2) The appeal book must, except for the modifications in Rule 91.15(3) applicable to a sentence appeal, contain each of the following, unless the parties agree or a judge orders otherwise:

    • (a) Part 1 - Documents:

      • (i) a table of contents referring to each document and the page number at which it begins,

      • (ii) a copy of the notice of appeal and of any notice of cross-appeal,

      • (iii)  a copy of the information, indictment, or other document by which the proceeding under appeal was started,

      • (iv) a copy of the decision under appeal,

      • (v) a copy of the order or other instrument giving effect to the determination under appeal,

      • (vi) a reference sheet containing the heading of the proceeding under appeal, the court or registry number, the name of the judge who made the judgment, the date of the trial or hearing, and the date of the judgment;

    • (b) Part 2 - Evidence and Related Materials:

      • (i) an index of witnesses describing each witness, including the name of the witness, the party who called the witness, and the page reference in the appeal book where the direct examination, cross-examination, or redirect examination begins,

      • (ii) a list of all exhibits,

      • (iii) a copy of the transcript of everything said in the course of the proceedings under appeal, including all of the following:

        • (A) a headline on each page stating the name of the witness and whether it is direct examination, cross-examination, or redirect examination,

        • (B) unless the individual lines of the transcript are numbered, the questions must be numbered consecutively, and each question to be preceded by the letter “Q” and each answer by the letter “A”,

        • (C) a copy of the transcript of submissions made,

      • (iv) a copy of each documentary exhibit or electronic information admitted into evidence, indexed and numbered as at the trial, including any statement of facts, affidavits and written admissions,

      • (v) a copy of an agreement to limit the contents of the transcript or appeal book,

      • (vi) a copy of an agreed statement of facts in substitution for omitted parts of a transcript or appeal book,

      • (vii) a copy of any charge to the jury, certified by the trial judge to be accurate.

  • (3) Rule 91.15(2) applies on a sentence appeal with all of the following modifications:

    • (a) the appeal book need not include exhibits entered at a trial but must include exhibits entered at the sentencing;

    • (b) the appeal book need not include the transcript of the evidence of trial if only the sentence is appealed;

    • (c) the appeal book must include

      • (i) a presentence report that was before the sentencing judge,

      • (ii) a statement of the accused’s criminal record that was before the sentencing judge if the accused has a record,

      • (iii) a copy of each order related to the sentence, such as a discharge, probation order, order for a conditional sentence, or warrant of committal.

  • (4) An appellant, other than an appellant in a prisoner appeal, must file five copies of an appeal book and deliver a copy to the respondent, in accordance with the directions given by a judge of the Court of Appeal under Rule 91.12.

  • (5) In a prisoner appeal, the Attorney General must file five copies of an appeal book, in accordance with the directions given by a judge of the Court of Appeal under Rule 91.12, that conforms with one of the following and deliver a copy to the institution where the appellant is imprisoned:

    • (a) Rule 91.15(2), in an appeal that is not only from sentence;

    • (b) Rule 91.15(2) as modified by Rule 91.15(3), in an appeal only from sentence.

  • (6) When a document in a prisoner appeal is delivered to the institution in which the appellant is imprisoned, the senior official of the institution must immediately deliver it to the appellant.

  • (7) An appellant, or in the case of a prisoner appeal the Attorney General, must file an electronic copy of the transcript in a format satisfactory to the registrar, in addition to filing paper copies, unless the registrar or a judge of the Court of Appeal orders otherwise.

  • (8) An appeal book may not be filed by fax.

Abbreviating transcript or appeal book

  •  (1) The parties may agree to omit from a transcript or appeal book anything the parties consider unnecessary to an appeal.

  • (2) The parties may agree to a statement of facts so as to make a transcript, part of a transcript, or part of an appeal book unnecessary.

  • (3) An agreement and an agreed statement of facts must be in writing and be filed.

  • (4) A judge may order that a party need not file a transcript or may omit anything from a transcript or appeal book.

Appeal with written submissions only

  •  (1) A party may choose to make all submissions in writing and not attend a hearing of the appeal.

  • (2) A party who chooses to make submissions in writing only must state the intention to do so either in the notice of appeal or by a written notice to the other party and the court before the deadlines for filing factums set by a judge of the Court of Appeal.

  • (3) A party who chooses to make all submissions in writing must file a factum that complies with Rule 91.18.

  • (4) A judge of the Court of Appeal may direct when the factum is to be filed.

Factum

  •  (1) The parties must file five copies of a factum and deliver a copy to the other party by one of the following deadlines, unless a judge of the Court of Appeal permits otherwise:

    • (a) for the appellant’s factum, no more than 10 days after the day the transcript and appeal book are filed;

    • (b) for the respondent’s factum, no more than 10 days after a copy of the appellant’s factum is delivered to the respondent.

  • (2) A factum must be in the same format and have the same content as is required in a factum under Rule 90.32.

  • (3) A judge of the Court of Appeal may excuse a party who is not represented by counsel from compliance with this Rule 91.18.

  • (4) A factum may not be filed by fax.

Book of authorities

  •  (1) A party to an appeal who wishes to rely on authorities in argument, such as a judicial decision or a scholarly article, must file five copies of a book of authorities at the same time that the party files a factum.

  • (2) Parties must make best efforts to agree on, prepare, and file a joint book of authorities.

  • (3) The book of authorities must be in the same format and have the same content as is required under Rule 90.33.

Dismissing appeal summarily

  •  (1) A judge of the Court of Appeal may dismiss an appeal of a judgment from which no appeal lies to the Court.

  • (2) A judge of the Court of Appeal may dismiss an appeal in which the appellant fails to comply with this Rule 91, such as failing to comply with a Rule, or directions given under a Rule, on any of the following subjects:

    • (a) ordering a transcript;

    • (b) the form and service of the notice of appeal;

    • (c) filing and delivering a transcript, appeal book, and appellant’s factum.

  • (3) A judge of the Court of Appeal may give directions for the completion of a prisoner appeal in which the Attorney General fails to comply with this Rule.

  • (4) A judge of the Court of Appeal hearing a motion to dismiss an appeal summarily, or to give directions as a result of a failure of the Attorney General, may, in addition to determining the motion, give directions on the appeal generally, order costs, where otherwise permitted by law, or require the defaulting party to indemnify another party for the expenses caused by the default.

Management of appeal

  •  (1) The Chief Justice may appoint a judge of the Court of Appeal, or panel of judges of the Court of Appeal, to assist in the management of an appeal.

  • (2) A party may request the appointment of an appeal management judge, or panel of judges, by filing a request with the registrar.

  • (3) An appeal management judge, or panel of judges, may give directions that are consistent with this Rule 91 and determine motions.

  • (4) Directions may be given and motions may be heard in conference, by correspondence, in chambers, by teleconference, or otherwise, as the appeal management judge, or panel of judges, decides.

  • (5) The following are examples of subjects that may be dealt with in judicial management of an appeal:

    • (a) setting tasks and deadlines to complete all steps to the hearing of the appeal;

    • (b) settling the order of argument;

    • (c) limiting the time allocated to each party for argument;

    • (d) settling the issues to be argued and determined;

    • (e) scheduling motions before the hearing of the appeal.

  • (6) Directions may be varied on motion.

  • (7) An appeal management judge, or panel of judges, may direct that the conference be recorded by the Court of Appeal.

  • (8) An appeal management judge, or panel of judges, may make an order after a conference that does any of the following:

    • (a) records the subjects discussed, and agreements made, at the conference;

    • (b) records directions given at the conference, or gives further directions;

    • (c) gives effect to a ruling on an issue relating to the appeal book or a factum, or procedure for an upcoming hearing submitted to the judge at the conference with the consent of the parties.

  • (9) An appeal management judge, or panel of judges, who determines relief must do so by order if a party seeks relief from compliance with these Rules, and an order is required.

Deciding appeal after granting leave

 The Court of Appeal may, after determining to grant leave to appeal, do either of the following:

  • (a) give directions for the hearing of the appeal;

  • (b) decide the appeal without further argument, if the merits have been fully argued.

Abandonment of appeal

  •  (1) An appellant may abandon an appeal by filing a notice of abandonment.

  • (2) A notice of abandonment must be entitled “Notice of Abandonment”, be dated and signed, and include a notice that the appellant abandons the appeal.

  • (3) The signature of an appellant who personally signs a notice of abandonment must be verified by affidavit, by the signature of counsel as subscribing witness, or by the signature, as subscribing witness, of an officer of the institution in which the appellant is imprisoned.

  • (4) The notice of abandonment may be in Form 91.23.

  • (5) A notice of abandonment must be filed and delivered in the same way as a notice of appeal under Rule 91.10.

  • (6) A notice of abandonment has the same effect as an order dismissing an appeal, unless a judge who is satisfied that it is in the interest of justice to do so permits the appellant to withdraw the abandonment.

  • (7) A respondent may make a motion for an order dismissing an abandoned appeal.

Release pending appeal

  •  (1) An appellant who appeals against sentence only, is in custody, and wishes to be released pending appeal must make a motion to a judge of the Court of Appeal for leave to appeal, which motion may be heard together with a motion for an order for release under section 679 of the Code and be determined before or at the same time as the motion for release is determined.

  • (2) An appellant who makes a motion for release from custody pending appeal under section 679 of the Code must provide evidence of all of the following, by affidavit or agreed statement of facts filed with the notice of motion:

    • (a) details of the conviction;

    • (b) details of any ground of appeal that the appellant omitted from the notice of appeal and wishes to argue;

    • (c) the appellant’s age, status as a single person or partner or spouse, places of residence in the three years before the conviction, employment before conviction, prospects for employment if released, including the place of prospective employment if released, and any criminal record;

    • (d) the unnecessary hardship of being detained in custody, if the appeal is of sentence only;

    • (e) the amount of money or the value of other security the appellant proposes, if the appellant proposes release on a recognizance with sureties;

    • (f) the names of sureties and the amount for which each is to be liable, if sureties are proposed and arrangements have been made with them.

  • (3) An appellant who makes a motion under this Rule must, unless directed otherwise by a judge, file with the notice of motion:

    • (a) the decision of the sentencing judge;

    • (b) the submissions made at the sentencing hearing;

    • (c) a copy of any presentence report;

    • (d) a copy of the appellant’s criminal record, if any;

    • (e) a proposed form of order for release pending appeal.

  • (4) The Attorney General who opposes release must provide evidence by affidavit or agreed statement of facts on any fact alleged by the Attorney General and not established by the affidavit or agreed statement of facts of the party seeking release, or by cross-examination.

  • (5) A party may cross-examine a witness who swears or affirms an affidavit filed by the other party.

Exhibits

  •  (1) A judge, clerk, or prothonotary of a court who makes a judgment must retain custody of the exhibits admitted, and other materials that were before the court, in the proceeding that led to the judgment for no less than 25 days after the later of either of the following:

    • (a) the day the deadline for filing a notice of appeal under Rule 91.09(1) expires;

    • (b) the day the deadline extended under Rule 91.09(2) expires.

  • (2) The Attorney General who receives or files a notice of appeal must give notice of the appeal to the judge, clerk, or prothonotary who has custody of the exhibits and other materials.

  • (3) The judge, clerk, or prothonotary who is notified must continue to retain custody of exhibits and other materials until one of the following happens:

    • (a) a judge of the Court of Appeal or the registrar directs that the exhibits and other materials be delivered to the registrar or another person;

    • (b) the appeal is finally determined.

  • (4) The judge, clerk, prothonotary, or registrar must, unless the judge or a judge of the Court of Appeal orders otherwise, return the exhibits and other materials to the party who produced them or the party’s counsel when the periods provided in Rule 91.23(1) or (3) expire.

  • (5) This Rule 91.23 does not apply to the custody of exhibits and other materials that is provided for in the Code or other legislation, such as the Controlled Drugs and Substances Act.