Prince Edward Island – Criminal Appeal Rules of Court (SI/2011-109)

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Prince Edward Island – Criminal Appeal Rules of Court

SI/2011-109

CRIMINAL CODE

Registration 2011-12-21

Prince Edward Island – Criminal Appeal Rules of Court

The Prince Edward Island Court of Appeal, pursuant to subsection 482(1)Footnote a of the Criminal CodeFootnote b, repeals Rule 67 of the Rules of the Supreme Court and the Appeal Division of the Supreme Court of Prince Edward IslandFootnote c and hereby makes the annexed Rule 82 — Criminal Appeal, effective January 1, 2012.

November 30, 2011

THE HONOURABLE DAVID H. JENKINS
Chief Justice on behalf of the
Prince Edward Island Court of Appeal

RULE 82Criminal Appeal

Interpretation and Definitions

  •  (1) In this rule, unless the context requires otherwise,

    appeal

    appeal includes an application for leave to appeal and a cross-appeal; (appel)

    appellant

    appellant means the person who is appealing from conviction or sentence, or both, and in an appeal by the Crown means Her Majesty the Queen represented by the Attorney General and includes an appellant by cross-appeal; (appelant)

    Attorney General

    Attorney General means the Attorney General as defined in section 2 of the Code and includes counsel instructed by him or her for the purpose of appeal, and Her Majesty the Queen represented in an appeal by the Attorney General; (procureur général)

    Chief Justice

    Chief Justice means the Chief Justice of Prince Edward Island or in the absence of the Chief Justice of Prince Edward Island, the next senior judge of the Court; (juge en chef)

    Code

    Code means the Criminal Code, R.S.C. 1985, c. C-27; (Code)

    Court

    Court means the Prince Edward Island Court of Appeal; (Cour)

    Chief Court Reporter

    Chief Court Reporter means a person designated as such under the Court Reporters Act R.S.P.E.I. 1988 Cap. S-10.1; (sténographe judiciaire en chef)

    Court Reporter

    Court Reporter means a person designated as such under the Court Reporters Act R.S.P.E.I. 1988 Cap. S-10.1 or a person designated to record proceedings in the Provincial Court or youth justice court; (sténographe judiciaire)

    court transcriber

    court transcriber means a person designated as such under the Court Reporters Act R.S.P.E.I. 1988 Cap. S-10.1 or a person designated to transcribe proceedings in the Provincial Court or youth justice court; (transcripteur judiciaire)

    judge

    judge means a judge of the Court and includes a judge of the Supreme Court of Prince Edward Island, whenever any such judge is sitting ex-officio, as a judge of the Court; (juge)

    judgment

    judgment means the formal disposition of an appeal by the Court and includes an order for judgment; (jugement)

    notice of appeal

    notice of appeal includes notice of application for leave to appeal and notice of cross-appeal; (avis d’appel)

    Prisoner Appeal

    Prisoner Appeal means an appeal by a person who, when the notice of appeal is given, is in custody and is not represented by counsel; (appel d’un détenu)

    Provincial Court

    Provincial Court means the Provincial Court of Prince Edward Island; (Cour provinciale)

    Registrar

    Registrar means the officer of the Court appointed as registrar or as a deputy registrar; (registraire)

    respondent

    respondent means Her Majesty the Queen represented by the Attorney General in the case of a person who appeals against conviction or sentence, and where the appeal is by Her Majesty the Queen represented by the Attorney General, means the person whose acquittal or sentence is appealed, or in whose favour a court refused to exercise its jurisdiction or has issued an order to quash or stay an indictment; (intimé)

    trial court

    trial court means the court appealed from. (tribunal de première instance)

    trial judge

    trial judge means the judge who presided at the trial; (juge de première instance)

    youth justice court

    youth justice court means a youth justice court referred to in section 13 of the Youth Criminal Justice Act. (tribunal pour adolescents)

  • (2) The interpretation and definitions in sections 2 and 673 of the Code apply to this rule.

Application of Rules

  •  (1) This rule applies to appeals under Part XXI, Part XXVI and under section 839 of the Code and to any other appeal filed in the Court in relation to any cause or matter processed in accordance with criminal procedures, so far as this Rule is not inconsistent with any provision of the Code or any other statute or any uniform rules of court made by the Governor in Council under subsection 482(5) of the Code.

  • (2) The provisions of this Rule relating to prisoner appeals, apply, with the necessary modifications, to an appeal by any person who, although not convicted, is detained in custody and appeals under section 672.72 of the Code.

Application of Civil Rules

 Any matter of procedure or practice not provided for by the Code or this rule shall be governed by this Rule of Civil Procedure in force from time to time.

Notice of Appeal

  •  (1) An appeal shall be commenced by the issuing of a notice of appeal that sets out the grounds of appeal. In prisoner appeals the notice shall be in Form 82B. In all other appeals by a convicted person or by the Attorney General, the notice shall be in Form 82A.

  • (2) The senior official of every penal institution shall supply to any prisoner in custody, on request, notice of appeal forms for the prisoner’s use as well as a copy of this rule and all other forms as may be required for the prisoner’s use.

  • (3) Except where subsections (4), (5) and (6) apply, a notice of appeal

    • (a) from conviction, or conviction and sentence, or sentence only, shall be filed not later than 30 days after the date of the sentence; and

    • (b) from acquittal shall be filed not later than 30 days after the date of the acquittal.

  • (4) Where a person is acquitted of an offence but is convicted of an included offence, a notice of appeal from acquittal shall be filed not later than 30 days after the date of the sentence imposed in respect of the included offence.

  • (5) Where an appeal is to be taken in respect of one or more counts in an indictment, a notice of appeal from conviction, acquittal or sentence shall be filed not later than 30 days after the date of the acquittal or sentence, in respect of any count in the indictment.

  • (6) Where an appeal is to be taken under section 784 or 839 of the Code, a notice of appeal shall be filed not later than 30 days after the date of pronouncement of the decision in the court appealed from or, if the decision is reserved, after the date of the filing of written reasons for the decision.

Filing and Service of Notice of Appeal

  •  (1) In a prisoner appeal, the filing of a notice of appeal shall be effected by delivering the notice of appeal to the senior official of the penal institution in which the appellant is imprisoned. The senior official shall endorse on the document the date of receipt and shall then return a copy so endorsed to the appellant and forthwith forward the original to the Registrar.

  • (2) In all cases where the Attorney General is not the appellant, other than in a prisoner appeal, the filing of a notice of appeal shall be effected by

    • (a) filing the original and four copies of the notice of appeal with the Registrar; or

    • (b) sending the documents to the Registrar by prepaid registered mail.

  • (3) The Registrar shall, on receipt of a notice of appeal under subrules (1) and (2), effect service by forwarding a copy to the Attorney General and to the court appealed from.

  • (4) In an appeal by the Attorney General, the notice of appeal shall be filed with the Registrar. Service by the Attorney General on the respondent and other parties shall be effected within 30 days after such filing by

    • (a) personal service on the respondent;

    • (b) service on the respondent’s legal counsel if counsel accepts service on behalf of the respondent or if counsel already appears as counsel of record in the Court;

    • (c) service on the appropriate senior official of the penal institution if the respondent is in custody;

    • (d) verified facsimile transmission; or

    • (e) any other manner as may be directed by the Court or a judge of the Court.

  • (5) Proof of service of the notice of appeal, in appeals under sub-rule (4), shall be filed with the Registrar forthwith.

  • (6) A notice of cross-appeal shall be filed not later than 30 days after receipt by the cross-appellant of the notice of appeal and shall be served in accordance with this Rule.

Leave to Appeal

  •  (1) Where leave to appeal is required, arguments respecting leave shall be presented at the hearing of the appeal unless

    • (a) the appeal is from sentence only and the appellant has applied under section 679 of the Code for release from custody pending the appeal;

    • (b) the appellant or respondent applies, with appropriate supporting materials, for the issue of leave to be determined prior to the hearing of the appeal; or

    • (c) the Court of its own motion requires the parties to appear, with appropriate supporting materials, at a hearing to determine the issue of leave.

  • (2) On the hearing of an application, the Court may grant leave, refuse leave or postpone the decision until the hearing of the appeal.

 
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