Rule 91 — Criminal Appeal (SI/2009-3)

Regulations are current to 2016-04-12

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”.

 
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