Service of Notice
42.04 (1) Service of the notice of application and of the supporting materials required by subrule 42.03(1) shall be made upon the respondent, in accordance with rule 5, at least 2 clear days prior to 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 in the office of the clerk of the appeal court in the place where the application is to be heard, at least 2 clear days before the date fixed for the hearing of the application.
Consent to Abridgment or Extension of Time
(3) Any time prescribed by this rule for serving or filing the notice of application or supporting materials may be abridged or extended by consent in writing endorsed on the relevant document by the party served.
Order Directing Release
Form of Order
42.05 (1) An order directing the terms upon which an accused is to be released from custody pending appeal upon application under this rule may be in Form 10.
Sufficiency of Order
(2) An order in Form 10 shall be sufficient authority for a justice of the peace to prepare the necessary undertaking or recognizance when satisfied that any condition precedent thereto has been met.
Consent in Writing
(3) The respondent may consent in writing to the order sought, upon terms included in a draft order in Form 10A, and a judge may grant such order without the attendance of counsel.
Conditions of Release
(4) Unless otherwise ordered by the judge hearing the application, every order for release from custody pending appeal shall contain the conditions:
(a) that the appellant will surrender into custody at the institution from which he or she is released, or such other institution as may be specified in the order, by 6:00 p.m. on the day prior to the hearing of the appeal or such other day as is 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, and,
(e) that the appellant will advise the clerk of the appeal court of his or her place of residence.
Expiration of Release Orders
(5) Unless otherwise ordered by the judge hearing the application, an order directing the release of the appellant from custody pending appeal shall contain a date when the order will expire that is not more than 9 months from the date of the order.
Variation of Bail
(6) A judge may, on cause being shown, cancel an order previously made under section 816 of the Code and may make any order that could have been made under that section.
Order May be Made without Attendance of Counsel
(7) An order for a new recognizance or undertaking varying a condition may be made by a judge without the attendance of counsel, upon filing the written consent of counsel for the respondent.
Content of Material to be Filed
(8) Where the appellant seeks an order under subrule (6) which varies the condition referred to in clause 4 (a), 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 the rules and, where applicable, the earliest feasible date on which the appeal may be heard.
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