Rule 41: Stays and Suspensions Pending Appeal
[Code ss. 261 & 683(5)]
Application of the Rule
41.01 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
41.02 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
41.03 (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 clause (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.
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