Criminal Proceedings Rules for the Superior Court of Justice (Ontario) (SI/2012-7)

Regulations are current to 2017-10-13 and last amended on 2014-01-01. Previous Versions

Application

 Except as otherwise provided by the Code, any other Act of the Parliament of Canada or enactment made thereunder, this rule applies to appeals as defined in rule 40.01.

Extension or Abridgment of Time, Applications for Directions, and Orders without the Attendance of Counsel

  •  (1) Any time limited by this rule may be extended or abridged by a judge, before or after the expiration of the time prescribed, in accordance with rule 3.02, except that the time limited by subrule 40.16(1) for making an application under subsection 822(4) of the Code shall not be extended pursuant to rule 3.02.

  • (2) Any party to an appeal or the clerk of the appeal court may apply to a judge for directions regarding the appeal, on notice to every other party.

Notice
  • (3) Except in an inmate appeal, notice of an application to extend or abridge the time limit or for directions, unless on consent or otherwise ordered by a judge, shall be served on every other party or as otherwise specified by this rule.

  • (4) Where an extension or abridgement of time relating to an inmate appeal is granted by a judge, the endorsement to that effect shall constitute an order extending or abridging the time.

  • (5) Except for an order for release from custody under section 816 of the Code, any order provided for in rules 40 to 42 may be made with the consent in writing of the parties, without the attendance of counsel.

  • SI/2014-5, s. 22(E).

Form of Notice of Appeal

Inmate appeals

  •  (1) The notice of appeal in an inmate appeal shall be in Form A to the Criminal Appeal Rules of the Court of Appeal for Ontario, with necessary modifications.

Counsel’s appeal
  • (2) The notice of appeal in any other appeal by a convicted person shall be in Form 2.

Appeal by Attorney General
  • (3) A notice of appeal by the Attorney General shall be in Form 2, with necessary modifications.

Notice of Appeal Contents
  • (4) All notices of appeal shall be:

    • (a) dated and signed by the appellant, or the counsel of record of the appellant, and

    • (b) directed to the clerk of the appeal court.

Constitutional Question
  • (5) Where a notice of appeal raises a constitutional question as set out in section 109 of the Courts of Justice Act, the notice shall be titled “Notice of Appeal and Constitutional Question” and shall be served and filed in accordance with subrule 40.06(1).

Times for Service and Filing

  •  (1) An appellant shall serve and file the notice of appeal,

    • (a) where the appeal is from a conviction or sentence or both, within 30 days after the day on which the sentence was imposed; or,

    • (b) in any other case, within 30 days after the day on which the adjudication under appeal was made.

Manner of Service and Filing

  •  (1) Notice of appeal shall be given:

    • (a) in an inmate appeal by giving the notice of appeal to the senior official of the institution in which the appellant is confined. The official shall transmit the notice of appeal to the clerk of the appeal court for the jurisdiction in which the proceeding appealed from was held. The official shall forthwith give to the inmate any documents that are transmitted to the inmate by the clerk of the appeal court, and shall inform the clerk of the appeal court of doing so.

    • (b) in an appeal other than an inmate appeal,

      • (i) Where the appeal is by the defendant, by serving and filing with the clerk of the appeal court for the jurisdiction in which the proceeding appealed from was held, a copy of the notice of appeal with proof of service on the Attorney General, at the office designated for service of notice of summary conviction appeals in the region in which the trial was held,

      • (ii) Where the appeal is by the Attorney General, by filing with the clerk of the appeal court for the jurisdiction in which the proceeding appealed from was held, a copy of the notice of appeal, with proof of personal service on each respondent to the appeal, and

      • (iii) Where the notice of appeal raises a constitutional question as set out in section 109 of the Courts of Justice Act, by also serving

        • a. The Public Law Division, Constitutional Law Branch of the Ministry of the Attorney General; and,

        • b. The Attorney General of Canada at the Regional Office of the Public Prosecution Service of Canada at Toronto or at Ottawa.

Proof of Service
  • (2) Except as ordered by a judge, a party serving a Notice of Appeal shall within the time specified in rule 40.05 file proof of service, by affidavit of the person who served it, or by a counsel of record’s written and dated admission or acceptance of service.

Substituted Service
  • (3) Where a respondent cannot be found after reasonable efforts have been made to serve the notice of appeal, the appellant may apply for directions pursuant to subrule 40.03(2) without notice, to effect substituted service in the manner directed and within the period directed by a judge, pursuant to section 678.1 of the Code.

Processing Appeals

  •  (1) Upon receipt of a notice of appeal, the clerk of the appeal court shall forthwith transmit a copy of it to the clerk of the trial court in the region or county in which adjudication was made.

Transmission of Exhibits and Documents
  • (2) Upon receipt of a notice of appeal, the clerk of the trial court, unless it is otherwise ordered by a judge, shall transmit forthwith to the clerk of the appeal court all documents and exhibits which were before the trial court, including the information, all notices of motion or applications, motion records and facta.

  • (3) Notwithstanding subrule (2), currency, valuable securities, jewellery, narcotics and exhibits which are inherently dangerous (as for example, explosives) shall not be transmitted to the clerk of the appeal court unless material to the issues raised on appeal and a judge so orders.

Transmission of Copy
  • (4) It shall be sufficient under subrule (2) for the clerk of the trial court to transmit to the clerk of the appeal court a certified copy of the information upon which trial proceedings took place, unless otherwise ordered by a judge.

  • (5) Upon receipt of the documents and exhibits from the trial court, the clerk of the appeal court shall make a copy of all the documents and exhibits that are capable of reproduction, and notify the appellant that they are available to be included in the appeal book to be prepared by counsel pursuant to rule 40.10.

  • (6) Where the exhibits transmitted are voluminous, the clerk of the appeal court may notify the parties to the appeal that an application for directions will be made to a judge regarding the exhibits, pursuant to subrule 40.03(2).

Transcripts and Agreements Respecting Evidence

Certificate Respecting Evidence

  •  (1) Except in the case of appeals to which subrules (3) and (4) apply, appeals in which counsel will be filing an agreed statement of fact in relation to the evidence pursuant to subrule 40.08(6) or (7) as the case may be, or where otherwise directed by the clerk of the appeal court, the appellant shall, at the time the notice of appeal is filed, furnish a certificate in Form 2C from each court reporter who took the evidence stating that copies of the transcript as required by these rules have been ordered.

  • (2) Where the appellant is unable to obtain a certificate in Form 2C from each court reporter by the time of filing the notice of appeal, the appellant may file the notice of appeal, the certificates in Form 2C that have been obtained and written confirmation that all other transcripts have been ordered. Where all certificates in Form 2C are not filed at the time the notice of appeal is filed, the appellant shall file the outstanding certificates in Form 2C within 30 days of filing the notice of appeal.

Where Provisional Certificate Granted
  • (3) Where an appellant has been granted a provisional certificate under the Legal Aid Services Act, 1998 which is limited to the filing of a notice of appeal or to the filing of a notice of appeal and the making of an application for release from custody pending appeal, the counsel of record acting under such certificate may file the notice of appeal without ordering the transcript, but when a legal aid certificate authorizing the carrying on of the appeal is granted, the counsel shall furnish the certificates required under subrule (1) within 15 days from the granting of such legal aid certificate, subject to subrule 40.08(2).

Where No Provisional Certificate Granted
  • (4) Where an appellant has applied for a certificate under the Legal Aid Services Act, 1998, but no provisional certificate has been granted, he or she shall file, at the time of filing the notice of appeal, proof of such application, and may lodge the notice of appeal without ordering the transcript or filing certificates of the court reporter, but when a legal aid certificate authorizing the carrying on of the appeal is granted, the counsel shall furnish the certificates required under subrule (1) within 15 days from the granting of such legal aid certificate subject to subrule 40.08(2).

  • (5) Within 15 days of receipt of the final decision of the area committee refusing the issuance of a legal aid certificate, the appellant shall furnish the certificates required under subrule (1).

Agreed Statements of Fact
  • (6) In appeals under s. 813 of the Code, where the facts are not in dispute, an agreed statement of facts served and filed within 30 days of the filing of the notice of appeal may take the place of the transcript of trial evidence.

  • (7) In appeals under s. 830 of the Code, where the facts are not in dispute, an agreed statement of facts served and filed within 15 days of the filing of the notice of appeal pursuant to subsection 830(2) of the Code may take the place of the transcript of trial evidence.

  • (8) Despite subrules (6) and (7), where an agreed statement of facts has been served and filed, the appellant must serve and file a transcript of the reasons for judgment, reasons for sentence, and full submissions and any ruling pertaining to the issues under appeal, and if there is an appeal of the sentence, all submissions and evidence called at the sentencing hearing.

  • (9) Where the appellant intends to file an agreed statement of fact, counsel may serve and file a written notification that they intend to do so at the time of filing the notice of appeal, without filing a Certificate in Form 2C.

  • (10) Where the parties have not filed an agreed statement of fact within 45 days of filing the notice of appeal pursuant to s. 813 of the Code, the appellant must serve and file a Certificate in Form 2C within 60 days of filing the notice of appeal unless otherwise ordered by a judge.

  • (11) Where the parties have not filed an agreed statement of fact within 15 days of filing the notice of appeal pursuant to s. 830 of the Code, the appellant must serve and file a Certificate in Form 2C within 30 days of filing the notice of appeal unless otherwise ordered by a judge.

  • (12) Where the appellant cannot comply with the 15-day period mentioned in subrule (7), and applies for an extension of time under rule 3.02, the judge hearing the application or determining the application in chambers on consent shall consider whether the 15-day period mentioned in subrule (7) is reasonable in the circumstances, and whether the proper administration of justice would benefit if this period were to be extended.

Contents of Transcripts for Conviction Appeals
  • (13) Unless otherwise ordered by a judge in accordance with rule 2.01, there shall be omitted from all transcripts of evidence:

    • (a) all opening remarks by the prosecutor;

    • (b) all argument on pre-trial motions or applications made at trial, excepting a notation that an application or motion was made (the ruling of the summary conviction court shall be transcribed), unless a ground of appeal to be argued relates to the pre-trial motion or application, in which case the transcript of the argument must be included in the transcript;

    • (c) all objections to the admissibility of evidence, excepting a notation that the objection was made (the ruling of the summary conviction court shall be transcribed), unless a ground of appeal to be argued relates to the ruling on the admissibility of evidence, in which case the transcript of the argument must be included in the transcript; and,

    • (d) the closing argument of the parties, their agent(s) or counsel unless a ground of appeal involves the reasons for judgment including, but not limited to grounds alleging an unreasonable verdict, misapprehension of evidence, a failure to properly apply the judgment in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.), a failure to consider relevant evidence and the inadequacy of the reasons given.

Additional Portions of Transcript
  • (14) An order for the inclusion in the transcript of any portion of the proceedings referred to in subrule (13) may be made without the attendance of counsel of record, upon filing the written consent of counsel of record for all parties.

  • (15) Any order for the inclusion in the transcript of any portion of the proceedings referred to in subrule (13) shall be sent to the court reporter within 5 days of the order having been granted, and a copy of the order shall be provided to the counsel of record for all parties, together with confirmation that the order has been sent to the court reporter.

  • (16) Everything that occurred following a finding of guilt shall be transcribed for use on the hearing of the appeal whether the appeal is against the finding of guilt or conviction and sentence or is against the sentence only.

Contents of Transcripts for Appeals against Sentence
  • (17) With respect to appeals as to sentence only:

    • (a) where there was a plea of guilty at the opening of trial before any evidence was taken, the transcript shall include the entire proceedings before the court, including the statement of the prosecutor, any evidence as to the facts, any submissions of the prosecutor for the Crown or the counsel for defence, and the reasons of the summary conviction court as to sentence;

    • (b) where the original plea was one of not guilty, and was followed by the adducing of evidence, unless otherwise ordered by a judge, the parties shall make every effort to agree on a statement of facts in accordance with subrule (6) or (7) as the case may be. Where the appellant cannot comply with the time limits set out in subrule (6) or (7) as the case may be, the appellant may seek an extension of the time pursuant to rule 3.02; and

    • (c) in the event of difficulty in settling the statement of facts, counsel for either party may, on notice, attend upon a judge in chambers for assistance. In the event of a failure to agree as to the facts, the provisions of subrules (1) and (10) to (12) apply.

Completion of Transcripts
  • (18) Upon signing a certificate, each court reporter shall proceed with reasonable diligence to prepare and certify the transcript. All transcripts shall be prepared no longer than 90 days after the date the transcript was ordered.

  • (19) If the transcript has not been completed within 90 days from the date the transcript was ordered, the court reporter shall notify the parties to the appeal and the clerk of the appeal court, in writing, of the reason for the delay, and the date upon which the transcript will be prepared forthwith.

  • (20) Upon completion of the transcript, the court reporter shall forthwith notify the parties to the appeal and the clerk of the appeal court, in writing, that the transcript has been completed, by filing a Certificate in Form 2D, which shall include the date(s) to which the transcript relates.

  • (21) The Appellant shall serve on the respondent and all other parties to the appeal, and file together with proof thereof, a copy of the transcript within 30 days of receipt of a Certificate in Form 2D from each court reporter responsible for preparing a portion of the transcript.

  • (22) Unless an appeal has been wholly abandoned, after a transcript has been ordered, the completion of the transcript shall not be suspended nor the order countermanded except pursuant to an order of a judge made in accordance with rule 2.01.

Costs Sanction for Unnecessary Evidence
  • (23) In considering whether to award costs on an appeal under section 826 or subsection 834(1) of the Code, a judge may consider whether evidence has been transcribed or exhibits reproduced unnecessarily.

  • SI/2014-5, ss. 23(E), 32(E).
 
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