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

Regulations are current to 2017-09-27 and last amended on 2014-06-23. Previous Versions

Abandonment of Appeals

  •  (1) An appellant who wishes to abandon an appeal may, before the hearing of the appeal

    • (a) serve on the respondent a notice of abandonment in Form 82G, and

    • (b) file with the Registrar the notice with proof of service.

  • (2) A notice of abandonment may be signed by the appellant or his or her counsel but if it is signed by the appellant, his or her signature shall be verified by affidavit or witnessed by a solicitor or by an officer of the penal institution in which the appellant is confined.

  • (3) An abandoned appeal shall be deemed to be dismissed without any formal order being necessary but the respondent may apply, without notice, to the Court or a judge for a formal order dismissing the appeal.

  • (4) Notwithstanding subsection 82.16(3), a judge may at any time, on notice of motion, grant leave to withdraw a notice of abandonment if it is in the interest of justice to do so.

Timing with Respect to Interlocutory Applications

  •  (1) Any party may seek from the Registrar a date and time for the hearing of an interlocutory application. When the date and time are set, the applicant shall serve copies of the documentation to be relied on, on all other parties at least four clear days before the hearing, unless the application is made by consent or the Court orders otherwise.

  • (2) Any written response to the application shall be filed with the Registrar and served on all other parties at least one clear day before the hearing.

  • SI/2014-62, s. 1.

Applications for Disclosure, Production of Third Party Records and Fresh Evidence

  •  (1) In seeking to obtain disclosure, the production of third party records and to adduce fresh evidence on appeal and pursuant to the applicable provisions of the Code, the applicant shall file and serve a notice of motion, which shall concisely set out the nature of the disclosure, the third party records being sought and/or 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 notice of motion 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) Motions for disclosure and the production of third party records shall be made to the panel hearing the appeal, and they shall be scheduled at a time prior to the panel hearing argument on the merits of the appeal.

  • (5) Unless otherwise ordered, a motion to adduce fresh evidence shall be made to the panel hearing the appeal and at the same time as the argument of the appeal on its merits.

  • (6) Either prior to or after ruling on the admissibility of the proposed fresh 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.

Application for Assignment of Counsel Under Section 684 of the Criminal Code

  •  (1) An application by an appellant or a respondent for the assignment of counsel under section 684 of the Code shall be made by filing the original and two copies of a Notice of Motion for Assignment of Counsel in Form 82H, together with an affidavit of the appellant or respondent in Form 82I.

  • (2) The Registrar shall provide a copy of the Notice of Motion and the affidavit to the Attorney General and the Office of Legal Aid.

Release from Custody Pending Appeal

  •  (1) An application, under section 679 of the Code, for release from custody pending appeal shall be made by notice of motion.

  • (2) An application for release pending appeal shall not be heard unless the appellant has filed a notice of appeal as well as a request for transcript and certificate in Form 82C.

  • (3) Where the appeal is from sentence only, a judge shall determine the application for leave to appeal the sentence before determining the application for release pending appeal.

  • (4) The application shall be accompanied by an affidavit or affidavits, including where practicable an affidavit of the appellant, 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 residence in the three years preceding conviction,

      • (iii) proposed place of residence 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 from sentence only, any unnecessary hardship that would be caused if the appellant were detained in custody.

  • (5) Where the Attorney General desires to assert that the detention of the applicant is necessary in the public interest 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.

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

  • (7) 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 the appellant and the Attorney General.

  • (8) The applicant shall 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 requirements stipulated by section 679 of the Code for release pending the appeal and, if applicable, in support of the argument that the appeal or application for leave to appeal is not frivolous. The Attorney General shall file a memorandum in reply.

  • (9) When granting an application for release, the judge may make a separate order requiring the applicant 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.

  • (10) Unless otherwise ordered by the judge hearing the application, all orders for release from custody pending appeal shall contain the following conditions:

    • (a) that the appellant will surrender into custody at the courthouse or at such other place as may be specified in the order, on the day of the hearing of the appeal or such other day as may be specified in the order;

    • (b) that the appellant acknowledges that failure to surrender into custody in accordance with the terms of the order will be deemed to constitute an abandonment of the appeal;

    • (c) that the appeal will be pursued with all due diligence;

    • (d) that the appellant will keep the peace and be of good behaviour;

    • (e) that the appellant will advise the Registrar of his or her place of residence.

  • (11) Where release pending appeal is granted, the appellant 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 Youth Criminal Justice Act and a notice of release from custody in Form 82J.

  • (12) Where release is granted in a prisoner appeal, the Attorney General shall prepare the documentation required under subsection (10).

Variation of an Order for Release from Custody Pending Appeal

  •  (1) A judge may, on cause being shown, revoke an order previously made under section 679 of the Code and may make any order that could have been made under that section.

  • (2) An order for a new recognizance or undertaking varying a condition may be made by a judge without the attendance of counsel, upon the filing of the written consent of counsel for the respondent.

  • (3) Where the appellant seeks an order under subsection (1) which varies a condition contained in an order made under section 82.19, the material filed in support of the application shall contain a summary of the status of the appeal, an explanation for any failure to comply with these rules and, where applicable, a statement of the earliest feasible date on which the appeal may be heard.

Post-Sentence Report

  •  (1) A party to the appeal may apply to the Court for an order that a post-sentence report be prepared.

  • (2) A party to the appeal may, with consent of the other party or with leave of the Court, file post-sentence information.

  • (3) Where the preparation of a post-sentence report is ordered by the Court and the subject of the report is in a penal institution, the report shall be prepared in writing by the appropriate official of the penal institution and filed with the Registrar within any time limits specified in the order, and the Registrar shall forward a copy of the report to counsel for each party to the appeal and to any party who is not represented by counsel.

  • (4) Where a post-sentence report is ordered by the Court and the subject of the report is not in a penal institution, the report shall be prepared by a probation officer and filed with the Registrar within any time limits specified in the order, and the Registrar shall forward a copy of the report to counsel for each party to the appeal and to any party who is not represented by counsel.

 
Date modified: