New Brunswick Criminal Appeal Rule 63 with Respect to Criminal Appeals to the Court of Appeal

SI/82-13

CRIMINAL CODE

Registration 1982-01-27

The Court of Appeal of New Brunswick — Criminal Appeal Rule 63 Made Pursuant to Section 482 of the Criminal Code with Respect to Criminal Appeals to the Court of Appeal of New Brunswick

Appeals

Rule 63Criminal Appeals to the Court of Appeal

Marginal note:Application of Rule

 This rule applies to appeals to the Court of Appeal under the Criminal Code (Canada).

  • SI/94-41, s. 2.
Marginal note:Interpretation and Definitions
  •  (1) Unless the context requires otherwise, the interpretation and definition sections of the Criminal Code apply to this rule.

  • (2) In this rule, unless the context requires otherwise

    appeal

    appel

    appeal includes a cross-appeal; (appel)

    clerk

    greffier

    clerk means the clerk of the Court of Queen’s Bench for the judicial district in which the trial was held; (greffier)

    Judge

    juge d’appel

    Judge means a Judge of the Court of Appeal; (juge d’appel)

    Notice of Appeal

    avis d’appel

    Notice of Appeal includes notice of cross-appeal; (avis d’appel)

    penal institution

    institution pénale

    penal institution includes a penitentiary as defined in the Corrections and Conditional Release Act (Canada) and a correctional institution as defined in the Corrections Act; (institution pénale)

    prisoner appeal

    appel d’un détenu

    prisoner appeal means an appeal by a person who, when the notice of appeal is given, is in custody and is not represented by counsel; (appel d’un détenu)

    Registrar

    registraire

    Registrar means the Registrar of the Court of Appeal and includes a deputy registrar of the Court of Appeal; (registraire)

    trial decision

    décision de première instance

    trial decision includes the conviction, judgment or verdict of acquittal, sentence or order against which an appeal may be taken; (décision de première instance)

    trial judge

    juge de première instance

    trial judge means the judge who presided at the trial in the trial court. (juge de première instance)

  • (3) The address of the Registrar is The Registrar, The Court of Appeal, Justice Building, Queen Street, P.O. Box 6000, Fredericton, N.B. E3B 5H1.

  • SI/94-41, s. 3.
Marginal note:Leave to Appeal

 Where leave to appeal is required, the Notice of Appeal shall contain an application for leave to appeal.

Marginal note:Commencement of Appeal
  •  (1) An appeal shall be commenced by issuing a Notice of Appeal and

    • (a) if the appeal is under Part XXI of the Criminal Code

      • (i) Notice of Appeal by the Attorney General or counsel instructed by him shall be in Form 63A,

      • (ii) Notice of Appeal by a convicted person represented by counsel shall be in Form 63B,

      • (iii) Notice of Appeal by a convicted person not represented by counsel shall be in Form 63C, and

    • (b) in all other cases a Notice of Appeal shall be in Form 63D.

  • (2) A party who proposes to appeal to the Court of Appeal shall issue a Notice of Appeal within 30 days from the date of the trial decision or the date of sentencing, whichever is later, or such extended time as the Court of Appeal or a Judge allows.

  • (3) A Notice of Appeal shall state the relief sought and the grounds of appeal including particulars of

    • (a) any evidence the appellant contends was wrongfully admitted or excluded, and

    • (b) any misdirection or nondirection by the trial judge.

  • SI/93-198, s. 1;
  • SI/94-41, s. 4.
Marginal note:Issue and Service of Notice of Appeal
  •  (1) Subject to paragraph (2) a Notice of Appeal is issued when the original and 3 copies

    • (a) are filed in the office of the Registrar, or

    • (b) are sent by prepaid registered mail or prepaid courier addressed to the Registrar at the address set out in Rule 63.02(3).

  • (2) Where the appellant is a prisoner in a penal institution and is not represented by counsel, a Notice of Appeal is issued when the original and 4 copies are served on the senior officer of the institution in which the appellant is imprisoned.

  • (3) When the senior officer of a penal institution is served with a Notice of Appeal under paragraph (2) he shall

    • (a) endorse the date of service on all copies of the Notice of Appeal,

    • (b) return a copy so endorsed to the appellant, and

    • (c) forward the original and the other 3 copies to the Registrar.

  • (4) Upon receiving a Notice of Appeal the Registrar shall

    • (a) assign to the Notice of Appeal a Court of Appeal file number,

    • (b) enface on the original and copies the file number and date of issue,

    • (c) forward a copy to

      • (i) the clerk of the court, if the trial was held in the Court of Queen’s Bench, or

      • (ii) the trial judge, if the trial was held in the Provincial Court,

    • (d) if the appellant is an accused or a defendant

      • (i) retain and file the original,

      • (ii) forward a copy to the Attorney General, and

      • (iii) return a copy to the appellant,

    • (e) if the appellant is the Attorney General or counsel instructed by him, or an informant,

      • (i) return the original to the appellant, and

      • (ii) retain and file a copy.

  • (5) Where the appellant is an accused or a defendant the forwarding by the Registrar to the Attorney General of a copy of the Notice of Appeal is deemed to be service on the respondent.

  • (6) An appellant who is not an accused or defendant shall, within 15 days after the Notice of Appeal is issued or such extended time as the Court of Appeal or a Judge allows, serve the Notice of Appeal on the respondent or such other person as a Judge directs, in the manner prescribed by Rule 18 for the service of originating process or in such manner as a Judge directs.

  • (7) Where a convicted person not represented by counsel commences an appeal and subsequently retains counsel, the counsel shall immediately give written notice to the respondent and to the Registrar of his retention and his address for service.

  • SI/94-41, s. 5.
Marginal note:Cross-Appeals

 A respondent may, within 15 days after a Notice of Appeal has been served upon him, issue and serve a Notice of Cross-Appeal upon the appellant in the same manner as a Notice of Appeal is served under Rule 63.05.

Marginal note:Transcript of Evidence
  •  (1) Except in a prisoner appeal, an appellant shall, forthwith after issuing a Notice of Appeal, forward to the clerk of the judicial district in which the proceeding was commenced a written request for preparation of the transcript required by subsection 682(2) of the Criminal Code to be furnished to the Court of Appeal.

  • (2) Subject to paragraph (3) in a prisoner appeal where the person appealing has a right of appeal or has been granted leave to appeal the Attorney General shall, forthwith after receiving the Notice of Appeal, forward to the clerk of the judicial district in which the proceeding was commenced a request for preparation of the transcript.

  • (3) Unless the Court of Appeal or a Judge orders otherwise, where an appeal is against sentence only the transcript shall be limited to

    • (a) evidence given and submissions made on the issue of sentence, and

    • (b) the reason for sentence given by the trial judge.

  • (4) The parties to an appeal may agree in writing or a Judge may, on motion, order that part of the transcript be omitted.

  • (5) The parties to an appeal may agree to a Statement of Facts in place of a transcript of evidence and the exhibits.

  • (6) Where an agreement or order is made under paragraph (3), (4) or (5) the appellant or Attorney General shall modify or withdraw his request for preparation of a transcript.

  • (7) When the evidence has been transcribed, the court stenographer shall forthwith

    • (a) forward the original transcript to the Registrar, and

    • (b) notify

      • (i) the parties to the appeal, and

      • (ii) the clerk, if the trial was held in the Court of Queen’s Bench, or

      • (iii) the trial judge, if the trial was held in the Provincial Court.

  • (8) Unless ordered otherwise, within 15 days after being notified that the evidence has been transcribed

    • (a) the clerk, if the trial was held in the Court of Queen’s Bench, or

    • (b) the trial judge, if the trial was held in the Provincial Court,

    shall forward to the Registrar the original file.

  • (9) A party to an appeal shall pay the fees prescribed under the Recording of Evidence Act for a copy or transcript of any material prepared under subsection 682(2) of the Criminal Code.

  • SI/94-41, s. 6;
  • SI/97-125, s. 1;
  • SI/2010-29, s. 1.
 
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