The Criminal Appeal Rules of the Supreme Court of Newfoundland, Trial Division

SI/87-28

CRIMINAL CODE

Registration 1987-01-21

Newfoundland Trial Division of the Supreme Court Criminal Appeal Rules

At a meeting held for the purpose in the City of St. John’s, Newfoundland, Canada, July 4, 1986, the majority of the Judges of Her Majesty’s Supreme Court of Newfoundland, Trial Division, pursuant to section 438 of the Criminal Code of Canada, adopted the following rules of practice numbered 1 to 38, inclusively, as attested by the signature of the Chief Justice of the Supreme Court of Newfoundland, Trial Division as rules of the Court respecting appeals governed by section 748 of the Criminal Code of Canada.

July 4, 1986

T. ALEX HICKMAN

Chief Justice of the Supreme Court of Newfoundland, Trial Division

Short Title

 These rules may be cited as The Criminal Appeal Rules of the Supreme Court of Newfoundland, Trial Division.

Interpretation

 In these rules

  • (a) appeal means an appeal from a summary conviction court pursuant to Part XXIV of the Criminal Code;

  • (b) appeal court means the Judicial Centre of the Supreme Court of Newfoundland, Trial Division, nearest to the place where the cause of the proceedings arose;

  • (c) Registrar means a clerk carrying out the functions of the Registrar of the Supreme Court of Newfoundland in the Appeal Court;

  • (d) Code means the Criminal Code; and

  • (e) judge means the judge of the appeal court except when preceded by the word “trial” in which case it means the judge or magistrate of the summary conviction court appealed from.

Appellant to Prepare Notice of Appeal

 Where an appeal is taken under Section 748 of the Code, the appellant shall prepare a written notice of appeal which shall be dated and signed by the appellant or his solicitor.

Contents of Notice of Appeal

 A notice of appeal shall be directed to the respondent and shall set forth

  • (a) the summary conviction court that entered or made the conviction or order or imposed the sentence appealed against;

  • (b) the conviction or order entered or made or the sentence imposed by the summary conviction court;

  • (c) the offence with which the defendant was charged and the place at which it was committed;

  • (d) the place where the trial in the summary conviction court was held;

  • (e) the date on which the conviction or order was entered or made or on which the sentence was imposed;

  • (f) whether the appeal is from the conviction, order for dismissal or other order or against sentence or against the conviction or order and sentence;

  • (g) concisely and precisely the nature of the order or other relief which the appellant intends to ask the appeal court to make or give and the reasons for asking for that order or other relief;

  • (h) whether the appellant, if he is in custody, wishes to be present in person when the appeal is heard; and

  • (i) the appellant’s address for service.

Form of Notice of Appeal

 Where the appellant is the defendant the notice of appeal may be in Form 1 in the schedule to these rules and where the appellant is the prosecutor the notice of appeal may be in Form 2 in the schedule, varied in each case as the circumstances require.

Service by Appellant-Defendant

 Where the appellant is the defendant he shall

  • (a) within 30 days after the conviction or order was made or the sentence was imposed, whichever is later, file the notice of appeal with the Registrar and cause a copy of it to be served personally or by pre-paid registered mail on the respondent or on his solicitor or agent; and

  • (b) not later than seven clear days after the last day for service of the notice of appeal file with the Registrar proof of service of the notice on the respondent or on his solicitor or agent.

Service by Appellant-Prosecutor

 Where the appellant is the prosecutor he shall

  • (a) within 30 days after the conviction or order was made or the sentence was imposed, whichever is later, file the notice of appeal with the Registrar and cause a copy of it to be served personally or by pre-paid registered mail on the respondent or his solicitor or on such other person or in such other manner as the appeal court may order in accordance with Rule 8; and

  • (b) not later than seven clear days after the last day for service of the notice of appeal file with the Registrar proof of service of the notice on the respondent or his solicitor or other person, if any, ordered by the appeal court under Rule 8.

Order for Substituted Service on Defendant

 The appeal court may on an ex parte application by the prosecutor order that a notice of appeal directed to a defendant may be served on such other person instead of the defendant or in such other manner as the appeal court may order.

Copy of Notice to Trial Court

  •  (1) After a notice of appeal has been filed the Registrar shall forthwith deliver or send a copy of the notice to the summary conviction court.

TRIAL COURT TO SEND MATERIAL TO REGISTRAR

  • (2) Subject to the Code and these rules, a summary conviction court shall, within 10 days after receipt of a copy of a notice of appeal, transmit to the Registrar the material referred to in subsection (1) of Section 754 of the Code.

Appellant to Order Transcript of Evidence and Reasons

  •  (1) Subject to these rules, the appellant shall, before or at the time of filing a notice of appeal, notify the summary conviction court that four copies of a transcript of the evidence in that court and of the reasons for judgment and sentence are required for the use of the appeal court.

APPELLANT TO FILE CERTIFICATE THAT TRANSCRIPTS ORDERED

  • (2) Subject to these rules, where the evidence at the trial in the summary conviction court was taken by a court reporter duly sworn or was recorded by a sound recording apparatus, the appellant shall, when he files a notice of appeal, file with the Registrar a certificate of the court reporter in the summary conviction court, in Form 3 in the schedule to these rules, that four copies of the transcript of the evidence taken in the summary conviction court and of the reasons for judgment and sentence have been ordered and will be provided.

COURT REPORTER TO PREPARE TRANSCRIPT AND SEND TO REGISTRAR

  • (3) Upon signing the certificate required under paragraph (2), the court reporter shall proceed with all reasonable diligence to prepare the transcript of the evidence and of the reasons for judgment and sentence and shall on completion transmit four copies of each, duly certified as to their correctness and authenticity, to the Registrar.

CERTIFICATE PRIMA FACIE PROOF OF ACCURACY OF TRANSCRIPT

  • (4) A certificate furnished by a court reporter under paragraph (3) is prima facie proof of the accuracy of the transcript of the evidence and of the reasons for judgment and sentence.

REGISTRAR TO SEND COPIES OF TRANSCRIPT TO PARTIES

  • (5) Forthwith upon receipt of the transcript of the evidence and the reasons for judgment and sentence the Registrar shall send a copy of each to the appellant and to the respondent or to the solicitor for each.

Trial Judge’s Notes May Be Provided if No Court Reporter or Recorded Evidence

 If the evidence upon a trial in the summary conviction court was not taken by a court reporter duly sworn or was not recorded by a sound recording apparatus, the trial judge shall provide the appeal court with four copies of his notes of the evidence and proceedings at the trial and those notes when verified by him are prima facie proof of the evidence and proceedings at the trial.

Transcript May Be Dispensed with on Appeal from Sentence

 If the parties agree or if the appeal is from sentence only, the appellant need not cause the transcript of the evidence to be furnished to the appeal court if the appeal court on a preliminary application orders that it may be dispensed with.

Appellant to File Statement of Points to Be Argued on Appeal

  •  (1) Except where otherwise ordered by the appeal court, the appellant shall file with the Registrar a signed, concise statement of the points of fact and law to be argued with references to the evidence and to the authorities relied upon and shall deliver a copy to the respondent.

RESPONDENT TO FILE STATEMENT IN REPLY

  • (2) The respondent shall within 14 days after delivery of the statement under paragraph (1) file a similar statement with the Registrar and deliver a copy to the appellant.

RESPONDENT TO STATE FACTS HE ACCEPTS OR REJECTS

  • (3) In the statement which he files under paragraph (2) the respondent shall, where possible, state those facts in the appellant’s statement which he accepts or rejects and his reply to the points which the appellant intends to argue.

STATEMENTS NOT REQUISITE

  • (4) The filing of statements under this rule shall not be a requisite in the perfecting of an appeal but their omission or delay may be reflected in costs.

Time May Be Extended for Filing, Etc.

  •  (1) Subject to the Code, the appeal court may on application, before or after the expiration of the time fixed for doing anything in accordance with these rules, extend that time.

APPLICATION FOR EXTENSION MAY BE EX PARTE

  • (2) An application under paragraph (1) may be made ex parte but the appeal court may direct service of notice of the application on the other party who may then be heard on the application.

Application to Withdraw Guilty Plea

 If an appellant entered a guilty plea at his trial in the summary conviction court, the Registrar shall enter the appeal for a hearing on the preliminary point as to whether the appellant may withdraw the guilty plea and the appeal court, on hearing that point, may, if it decides in favour of the appellant, give such directions or make such order as it deems just.

Application for Trial De Novo

  •  (1) An application for a trial de novo pursuant to subsection (4) of Section 755 of the Code shall be made by notice of motion with supporting material within seven days after the appellant receives the transcript of the evidence from the summary jurisdiction court or a certificate from the court reporter that a transcript cannot be provided.

SERVICE OF COPY OF NOTICE OF MOTION ON RESPONDENT

  • (2) Service of a copy of the notice of motion and supporting material under paragraph (1) shall be made upon the respondent not later than seven days before the return date thereof and proof of service shall be filed with the Registrar not later than two days before the return date.

EVIDENCE ON APPLICATION FOR TRIAL DE NOVO

  • (3) On the hearing of an application for a trial de novo the evidence supporting the application shall be viva voce but, with the approval of the appeal court, it may be supported by affidavits.

 
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