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

Regulations are current to 2017-11-20 and last amended on 2014-01-01. Previous Versions

Hearings of Appeals from Sentence Only

 On the appeal from sentence only, the appellant shall be limited to 15 minutes for oral argument, the respondent to 10 minutes, and the appellant to 5 minutes for reply, except with the leave of the judge hearing the appeal.

Failure to Appear for the Hearing of the Appeal

Failure to Appear

  •  (1) Where an appellant fails to appear personally, or by a counsel of record, on the date and at the time fixed for the hearing a judge may, on proof that notice of hearing of the appeal has been given, dismiss the appeal for want of prosecution.

  • (2) Where a respondent fails to appear personally, or by a counsel of record, on the date and at the time fixed for the hearing of the appeal a judge may, upon being satisfied that the appellant has not him or herself defaulted under subrule (1), determine the appeal in the absence of the respondent or argument from the respondent, as the case may be.

Reasons for Judgment

Where Reasons in or Reduced to Writing

  •  (1) In every appeal where reasons are given in writing or given orally and later reduced to writing, the clerk of the appeal court shall send a copy of the reasons:

    • (a) where an appellant or respondent has appeared in person, to the appellant or respondent, as the case may be,

    • (b) where the appellant or respondent has appeared by a counsel of record, to the counsel of record for the appellant or respondent, as the case may be,

    • (c) to the trial court from which the appeal was taken, and,

    • (d) to the Regional Senior Judge of the Ontario Court of Justice in the region in which the proceedings arose.

Where Reasons in Writing Not Given
  • (2) Where reasons in writing are not given, the clerk of the appeal court shall notify the trial court of the result of the appeal.

Rule 41: Stays and Suspensions Pending Appeal[Code ss. 261 & 683(5)]

Application of the Rule

 This rule applies to applications for an order:

  • (a) under section 261 of the Code, directing that any order under subsection 259(1) or (2) of the Code arising out of a conviction or discharge in respect of an offence under any of sections 220, 221, 236, 249 to 255 or 259 of the Code be stayed pending the final disposition of an appeal or until otherwise ordered by the court; and,

  • (b) under subsection 683(5) of the Code, directing that any order there described be suspended until an appeal under section 813 of the Code has been determined.

To Whom Made

 Applications under rule 41.01 shall be made to a judge in the region or county in which the appeal to which the application relates is to be heard.

Materials for Use on Application

Materials to be Filed

  •  (1) The notice of application in Form 1 under this rule shall be accompanied by:

    • (a) a copy of the information in which is contained the charge upon which the applicant was convicted or discharged of the offence to which the application relates;

    • (b) a copy of the notice of appeal and any supplementary notice of appeal;

    • (c) a properly signed and commissioned affidavit of the applicant deposing to the matters described in subrule (2); and,

    • (d) a copy of any other material in the court file that is necessary for the hearing and determination of the application.

Affidavit of the Applicant
  • (2) The affidavit of the applicant required by paragraph (1)(c) shall contain:

    • (a) particulars of the offence of which the applicant was convicted or discharged, including reference to the results of any analyses of the applicant’s bodily substances to determine the presence of alcohol or drugs, and whether the offence involved property damage, bodily harm or death;

    • (b) particulars of the applicant’s driving record, if any;

    • (c) a statement of the applicant’s places of abode in the three years preceding his conviction or discharge and where the applicant proposes to reside pending the determination of the appeal;

    • (d) particulars of the applicant’s employment prior to conviction or discharge, and whether such employment is reasonably expected to continue pending the determination of the appeal;

    • (e) particulars of the applicant’s criminal record, if any;

    • (f) a statement whether the applicant is addicted to the use of alcohol or other drugs and, if so, what steps, if any, the applicant has undertaken or proposes to undertake for the treatment of such addiction pending the determination of the appeal; and,

    • (g) particulars of what unnecessary hardship would be caused to the applicant if the stay or suspension were not entered.

Applicant’s Application Record
  • (3) Unless otherwise ordered by the judge hearing the application, the applicant shall prepare, serve and file an application record in accordance with rule 41.03, but no factum shall be required.

Respondent’s Application Record
  • (4) The respondent may prepare, serve and file a respondent’s application record in accordance with rule 41.03 but no factum shall be required.

  • SI/2014-5, s. 33(E).

Service and Filing of Notice

General Rule

  •  (1) Service of the notice of application under subrule 41.03(1) and of the supporting materials required by subrule 41.03(2) shall be made upon the respondent, in accordance with rule 5, at least 2 clear days before the date fixed for the hearing of the application.

Filing with Proof of Service
  • (2) The notice of application and supporting materials, together with proof of service thereof, shall be filed at least 2 clear days before the date fixed for the hearing of the application.

Consent in Writing

 The respondent may consent in writing to the order sought upon terms included in a draft order filed and a judge, satisfied that the relief sought by the applicant should be granted, may grant the order on such terms without the attendance of counsel.

Limitation on Stay or Suspension

 Unless otherwise ordered by the judge hearing the application or determining the application in chambers on consent, an order staying or suspending an order imposed by the trial court shall contain a date when the stay or suspension will expire that is not later than 9 months from the date of the order.

Rule 42: Release from Custody Pending Appeal[Code ss. 816 & 832(1)]

Application of the Rule

 This rule applies to applications by a person who was the defendant in a summary conviction proceeding and by whom an appeal has been taken under section 813 or 830 of the Code for release from custody pending the hearing or determination of the appeal.

To Whom Application Made

 An application referred to in rule 42.01 shall be made to a judge in the region or county in which the appeal to which the application relates is to be heard.

Materials for Use on Application

Materials to be Filed

  •  (1) The notice of application in Form 1 under this rule shall be accompanied by:

    • (a) a copy of the information in which is contained the charge in respect of which the appeal is taken;

    • (b) a copy of the notice of appeal and any supplementary notice of appeal;

    • (c) a properly signed and commissioned affidavit of the applicant deposing to the matters described in subrule (2); and,

    • (d) a copy of any other material in the court file that is necessary for the hearing and determination of the application.

Affidavit of the Applicant
  • (2) The affidavit of the applicant required by paragraph (1)(c) shall state:

    • (a) the particulars of the conviction and, where applicable, sentence imposed at trial;

    • (b) any grounds of appeal not specified in the notice of appeal or supplementary notice of appeal;

    • (c) the places of abode of the appellant in the three years preceding the conviction, and where the appellant proposes to reside if released;

    • (d) the employment of the appellant prior to conviction and whether the appellant expects to be employed if released and, if so, where;

    • (e) the criminal record of the appellant, if any;

    • (f) what hardship would be caused if the appellant were to be detained in custody pending the determination of the appeal; and,

    • (g) where the appellant proposes to enter into a recognizance with sureties, the amount of money or value of other security that the appellant proposes should be deposited and, where practicable, the names of the sureties and the amount for which each is to be liable.

Affidavit on Behalf of the Prosecutor
  • (3) Where the prosecutor wishes to assert that the detention of the applicant is necessary in the public interest, and to rely on material other than required to be filed under subrule (1) or (2), the prosecutor shall serve and file an affidavit setting out the facts upon which reliance is placed.

Cross-Examination on Affidavits
  • (4) Where an affidavit has been filed under this rule, the party opposite may cross-examine on such affidavit in accordance with rule 6.07.

Applicant’s Application Record and Factum
  • (5) The applicant shall prepare an application record which shall contain, in consecutively numbered pages arranged in the following order:

    • (a) a table of contents describing each document, including each exhibit, by its nature and date and, in the case of an exhibit, by exhibit number or letter;

    • (b) a copy of the notice of application;

    • (c) a copy of all material required to be filed under subrule (1), including a list of all relevant transcripts of evidence in chronological order, but not necessarily the transcripts themselves; and,

    • (d) a copy of any other material in the court file that is necessary for the hearing of the application,

    but, unless a judge otherwise orders, no factum is required.

Respondent’s Application Record and Factum
  • (6) Where the respondent is of the opinion that the application record is incomplete, the respondent shall, as soon as practicable after being served with the application record, prepare, serve and file with the clerk of the court in the place where the application is to be heard the respondent’s application record containing:

    • (a) a table of contents describing each document, including each exhibit, by its nature and date and in the case of an exhibit, by exhibit number or letter; and,

    • (b) a copy of the material to be used by the respondent on the application and not included in the application record,

    but, unless a judge otherwise orders, no factum shall be required.

Material May be Filed as Part of Record
  • (7) Any material served by a party for use on an application may be filed, together with proof of service, as part of the party’s application record and need not be filed separately if the record is filed within the time prescribed for filing the notice or other material.

  • SI/2014-5, s. 33(E).
 
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