Criminal Appeal Rules (SI/93-169)

Regulations are current to 2017-11-20

Criminal Appeal Rules

SI/93-169

CRIMINAL CODE

Registration 1993-08-25

Ontario Court of Appeal Criminal Appeal Rules

The Court of Appeal for Ontario, pursuant to subsections 482(1) and (3) of the Criminal CodeFootnote 1, with the concurrence of a majority of judges of that Court present for a meeting held for the purpose on May 7, 1993, hereby revokes the Ontario Court of Appeal Rules Respecting Criminal Matters — Part II, made on September 4, 1985, SI/85-205, Canada Gazette, Part IIFootnote 2, and makes the annexed Court of Appeal for Ontario Criminal Appeal Rules, effective September 1, 1993.

THE HONOURABLE C. L. DUBIN
Chief Justice on behalf of the Court of Appeal for Ontario

Interpretation and Definitions

Definitions

  •  (1) In these rules,

    acquittal

    acquittal includes,

    • (a) an order of the Ontario Court (General Division) that quashes an indictment or in any manner refuses or fails to exercise jurisdiction on an indictment, and

    • (b) an order of a trial court that stays proceedings on an indictment or quashes an indictment, where the Code provides a right of appeal from the order; (acquittement)

    appellant

    appellant includes an applicant for leave to appeal; (appelant)

    civil rule

    civil rule means a rule in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; (règle civile)

    Code

    Code means the Criminal Code (Canada); (Code)

    convicted person

    convicted person includes a person appealing a finding of guilt who has been granted a discharge under section 736 of the Code; (personne condamnée)

    criminal panel

    criminal panel means any panel of three judges assigned to hear criminal appeals in the week in which a matter is referred to a criminal panel under these rules; (tribunal siégeant en matière pénale)

    inmate appeal

    inmate appeal means an appeal by a person who at the time the notice of appeal is given is in custody and is not represented by counsel; (appel interjeté par un détenu)

    judge

    judge means the Chief Justice of Ontario, the Associate Chief Justice of Ontario or a judge of the Court of Appeal; (juge)

    notice of appeal

    notice of appeal includes a notice of application for leave to appeal; (avis d’appel)

    Registrar

    Registrar means the Registrar of the Court of Appeal and includes a deputy, associate or assistant Registrar. (greffier)

Application of the Code

  • (2) The interpretation sections of the Code apply to these rules.

Application to Young Offenders Act

Extraordinary remedies and summary conviction appeals

  • (4) These rules apply to appeals under sections 784 and 839 of the Code.

Matters not provided for

  • (5) Where matters are not provided for in these rules, the practice shall be determined by analogy to them.

Short title

Format

  • (7) The text of any document required by these rules, except the factum, may appear on one side or on both sides of the paper.

Application of Civil Rules

  •  (1) Except where otherwise provided by the Code, a statute or these rules, the Rules of Civil Procedure where appropriate and with necessary modifications apply to criminal appeals.

  • (2) Civil rules 61.03 (motion for leave to appeal), 61.04 (commencement of appeals), 61.05 (certificate or agreement respecting evidence), 61.07 (cross-appeals), 61.09 (perfecting appeals), 61.10 (appeal book), 61.11 and 61.12 (factums) and 61.13 (dismissal for delay) do not apply to criminal appeals.

Notice of Appeal

Inmate appeals

  •  (1) The notice of appeal in an inmate appeal shall be in Form A.

Solicitor’s appeal

  • (2) The notice of appeal in any other appeal by a convicted person shall be in Form B.

Appeal by Attorney General

  • (3) A notice of appeal by the Attorney General shall be in Form B with necessary modifications.

Other appeals

  • (4) The notice of appeal in any other appeal to which these rules apply, except an appeal under Part XX.1 of the Code, shall be in Form B with necessary modifications.

File number to be included

  • (5) A notice of appeal in Form B shall include the file number of the proceeding in the court appealed from.

Time for Service of Notice of Appeal

Appeal from acquittal

  •  (1) Where the appeal is from acquittal, the notice of appeal shall be served within thirty days after the day of the acquittal.

Appeal from conviction or sentence

  • (2) Where the appeal is from conviction, sentence, or both, the notice of appeal shall be served within thirty days after the day of the sentence.

Appeal from an order

  • (3) Where the appeal is from any other order, the notice of appeal shall be served within thirty days after the day of the making of the order sought to be appealed.

Manner of Service of Notice of Appeal

 Service of a notice of appeal shall be effected,

  • (a) in an inmate appeal, by delivering the notice of appeal to the senior official of the institution in which the appellant is in custody; and

  • (b) in an appeal other than an inmate appeal, by delivering to the office of the Registrar or by mailing to the Registrar by registered mail three copies of the notice of appeal, and, in addition, in an appeal by the Attorney General, by personal service on the person in respect of whose acquittal or sentence the appeal is brought, or as may be directed by a judge.

Order Without Attendance of Counsel

 Except for an application for release from custody under section 679 of the Code, any order provided for in these rules may be made with the consent in writing of the parties without the attendance of counsel.

Extension or Abridgement of Time

General powers of judge

  •  (1) The time for appeal and for doing any other act in connection with an appeal for which a time is prescribed may be extended or abridged by a judge before or after the expiration of the time prescribed.

Notice

  • (2) Except in an inmate appeal, notice of application to extend or abridge time shall be given to the opposite party unless otherwise directed by a judge.

Extension of time in inmate appeal

  • (3) An extension of time relating to an inmate appeal may be granted by a judge and the endorsement to that effect shall constitute an order extending the time.

  • (4) In all cases where the application for an extension of time in an inmate appeal is served six months or more after the time for serving the notice of appeal has expired, and in any other case where the judge considers it appropriate, the Registrar shall give notice to the Attorney General of the application.

  • (5) Upon receiving notice of the application, the Attorney General shall, if the application is opposed, within ten days file with the Registrar a written response to the application and a copy of the response shall be forwarded by the Registrar to the appellant together with a notification that he or she may make written submissions in reply to the response of the Attorney General within fifteen days after receipt of the response.

  • (6) If the judge to whom the application is made under subrule (4), after reviewing the grounds upon which the appellant in the notice of appeal requests an extension of time, the report of the trial judge under rule 13 and any submissions filed by the Attorney General or the appellant under subrule (5), is of the opinion that an extension of time should be refused, the judge shall prepare reasons for the refusal, and the file shall then be referred to two members of the criminal panel.

  • (7) The decision of the majority of the three judges shall be the decision of the court on the application for an extension of time.

  • (8) The reasons given by the court on the application shall be sent to the appellant, and where the Attorney General has filed a response, to the Attorney General, and where the application is granted the Attorney General and the appellant shall be notified by the Registrar.

Transcripts

No application to inmate appeals

  •  (1) This rule does not apply to inmate appeals.

Certificate of court reporter to accompany notice of appeal

  • (2) Except in the case of an appeal to which subrule (3), (5) or (7) applies and except where otherwise directed by the Registrar, the appellant shall at the time the notice of appeal is filed with the Registrar file a certificate of the court reporter that copies of the transcript as required by these rules have been ordered.

Where certificate unavailable

  • (3) Where the appellant cannot through the exercise of reasonable diligence file a certificate of the reporter as required by subrule (2), the appellant shall, at the time the notice of appeal is filed, file with the Registrar proof that the copies of the transcript as required by these rules have been ordered and shall file the certificate of the reporter within fifteen days after the filing of the notice of appeal.

Transcripts for the court

  • (4) Except where otherwise ordered, three copies of the transcript are required for the use of the court.

Appeal under provisional Legal Aid certificate

  • (5) Where an appellant has been granted a provisional certificate under the Ontario Legal Aid Plan limited to the filing of a notice of appeal or to the filing of a notice of appeal and the making of an application for release from custody pending appeal, the solicitor acting under the certificate may file the notice of appeal without ordering the transcript and without filing a certificate of the reporter, but where a legal aid certificate authorizing the carrying on of the appeal is granted, the solicitor shall file a certificate of the reporter as provided by subrule (2) within fifteen days after the granting of the legal aid certificate.

Procedure after certificate for appeal granted

  • (6) Where an appeal is commenced as an inmate appeal and a legal aid certificate is subsequently granted for the carrying on of the appeal, the solicitor acting under the certificate shall file a new notice of appeal in Form B within fifteen days after the granting of the certificate, whereupon the inmate appeal shall be deemed to be withdrawn and subrule (2) and all other rules relating to appeals through solicitors apply.

Appeal from General Division Judge not sitting as trial judge

  • (7) On an appeal from the decision of a judge of the Ontario Court (General Division) not sitting as a trial judge where no transcript is required other than that filed in the Ontario Court (General Division), the appellant shall at the time the notice of appeal is filed with the Registrar file an undertaking in Form C that any transcripts required for the hearing of the appeal will be filed within thirty days after the filing of the notice of appeal.

Contents of transcript

  • (8) Unless otherwise ordered by a judge, or except as otherwise consented to by the respondent, there shall be omitted from the transcript,

    • (a) any proceedings in respect of the selection of the jury;

    • (b) any opening address of the trial judge;

    • (c) the opening and closing addresses of counsel;

    • (d) all evidence in the absence of the jury and all submissions of counsel, in the absence of the jury except,

      • (i) submissions as to the proposed content of the charge and the trial judge’s ruling thereon and reasons,

      • (ii) objections to the charge and the trial judge’s ruling thereon and reasons,

      • (iii) submissions respecting questions from the jury and the trial judge’s ruling thereon and reasons;

    • (e) all final argument where there is no jury; and

    • (f) all objections to the admissibility of evidence, except a notation that an objection was made and a brief summary of the nature of that objection and the position of counsel, but the trial judge’s ruling and reasons in respect of the objection shall be set out in full in the transcript.

    Appeals against conviction and sentence

  • (9) In an appeal against conviction and sentence, the transcript shall include any evidence called at the sentence hearing and counsel’s submissions as to sentence.

Order for inclusion of additional transcript

  • (10) A party obtaining an order for the inclusion in the transcript of any portion of the matter referred to in subrule (8) shall furnish the order to the court reporter within five days after the granting of the order, and furnish a copy of the order to the other parties together with confirmation that the order has been sent to the reporter.

Appeal from sentence only

  • (11) In respect of an appeal as to sentence only,

    • (a) where there was a plea of guilty at the opening of the trial before any evidence was taken, the transcript shall include the entire hearing before the court including,

      • (i) the arraignment,

      • (ii) the statement of counsel for the prosecution,

      • (iii) any evidence,

      • (iv) any submissions of counsel for the prosecution and the defence, and

      • (v) any statement by the accused prior to the passing of sentence made under section 668 of the Code, and

      • (vi) the trial judge’s reasons for sentence;

    • (b) where the plea was not guilty, and was followed by the adducing of evidence, the transcript shall include, in the case of a jury trial,

      • (i) the charge to the jury and the re-charge if any,

      • (ii) the verdict,

      • (iii) any evidence called in respect of sentence,

      • (iv) any submission of counsel for the prosecution and for the defence on sentence,

      • (v) any statement by the accused prior to the passing of sentence made under section 668 of the Code, and

      • (vi) the trial judge’s reasons for sentence;

    and

    • (c) where the plea was not guilty, and was followed by the adducing of evidence, the transcript shall include, in the case of a trial by judge without a jury,

      • (i) the reasons of the trial judge for conviction,

      • (ii) the verdict,

      • (iii) any evidence called in respect of sentence,

      • (iv) any submissions of counsel for the prosecution and for the defence on sentence,

      • (v) any statement by the accused prior to the passing of sentence made under section 668 of the Code, and

      • (vi) the trial judge’s reasons for sentence.

    Agreed statement of facts

  • (12) Where the plea was not guilty, and was followed by the adducing of evidence, within thirty days after receipt of the transcript referred to in subrule (11), counsel for the appellant and for the respondent shall make every effort to agree to a statement of facts which shall be included in the appeal book.

  • (13) In the event of difficulty in settling the statement of facts, counsel for either party may, on notice, attend upon a judge for directions.

    Date of order and completion

  • (14) The transcript shall include a note of the date the transcript was ordered and the date the ordering party was notified that the transcript was completed.

Completion not to be suspended

  • (15) After a transcript has been ordered, the completion of the transcript shall not be suspended or the order countermanded without an order of a judge or the Registrar, unless the appeal has been wholly abandoned and the court reporter notified in accordance with subrule 30(3).

Notification of completion

  • (16) When the transcript has been completed, the court reporter shall forthwith notify the parties and the Registrar, and shall, upon payment, deliver the copies of the transcript for use of the court to the Registrar.

Payment unreasonably delayed

  • (17) Where the payment of the reporter’s account appears to have been unreasonably delayed, the reporter shall notify the Registrar.

Agreement respecting evidence

  • (18) Instead of complying with this rule, the parties may, within thirty days after service of the notice of appeal, make an agreement respecting the transcript required for the appeal and any such agreement shall be reduced to writing, be signed by the parties, be filed with the Registrar forthwith and form part of the contents of the appeal book under rule 14.

Dismissal for Failure to Comply with Rule 8

Service of notice to cure default

  •  (1) Where the appellant fails to comply with any of the provisions of rule 8, the Registrar may serve notice on the appellant and counsel for the appellant that the appeal may be placed before the Court of Appeal to be dismissed as an abandoned appeal unless the default is cured within ten days after service of the notice.

Service of notice that appeal to be dismissed as abandoned

  • (2) Where the appellant does not cure the default within ten days after service of the notice, or within such longer period as a judge allows, the Registrar shall serve notice on the appellant and counsel for the appellant of the date on which the appeal is to be placed before the Court of Appeal to be dealt with in accordance with subrule (1).

Appellant to be served with copy of order dismissing appeal

  • (3) The Registrar shall serve the appellant with a copy of an order dismissing the appeal.

    Manner of service

  • (4) Unless a judge otherwise orders, service of a notice on the appellant and counsel under this rule shall be by prepaid registered mail to the addresses as set out in the notice of appeal or as filed with the Registrar.

Processing Appeals

  •  (1) Upon receipt of a notice of appeal, the Registrar shall forthwith transmit a copy of it to the registrar of the Ontario Court (General Division) or the clerk of the Ontario Court (Provincial Division), as the case may be, for the county or district where the proceedings were held and, except where the appellant is the Attorney General, to the Attorney General.

  • (2) Upon receipt of a notice of appeal in Form A [inmate appeal], the registrar of the Ontario Court (General Division) or the clerk of the Ontario Court (Provincial Division), as the case may be, unless it is otherwise ordered by a judge, shall transmit forthwith to the Registrar all documents and exhibits capable of reproduction which were before the trial court.

Original Papers and Exhibits

Appellant to requisition original papers and exhibits

  •  (1) Except in the case of an inmate appeal, the appellant shall by requisition within fourteen days after the filing of the notice of appeal cause to be forwarded to the Registrar copies of the conviction, order, indictment or information, pre-sentence report, criminal record and any other papers or documents relating to the appeal together with all exhibits capable of reproduction from the court from which the appeal is taken.

    Form of requisition

  • (2) The appellant shall requisition the documents referred to in subrule (1) by filing a requisition in Form 4E of the Rules of Civil Procedure with the registrar of the Ontario Court (General Division) or the clerk of the Ontario Court (Provincial Division) as the case may be.

    Copy of requisition to be filed with Registrar

  • (3) The appellant shall file a copy of the requisition in Form 4E with the Registrar within fifteen days after the filing of the notice of appeal.

Processing of Appeal where Legal Aid Refused

  •  (1) Where an appellant in custody who has appealed through a solicitor has received notice that legal aid for the appeal has been refused and within fifteen days he or she files with the Registrar notice of intention to proceed with the appeal as an inmate appeal, rules 8 and 11 cease to apply to the appellant.

  • (2) The notice of intention shall state whether the appellant wishes to present the appeal in person or in writing.

  • (3) Thereafter the appeal shall be processed as an inmate appeal, and unless a transcript of evidence has been ordered, a report shall be obtained from the trial judge under rule 13.

  • (4) The appeal book shall include a copy of the appellant’s notice of intention and of the notice of appeal filed by the appellant’s former solicitor.

Trial Judge’s Report

  •  (1) Upon the request of the Court of Appeal made through the Registrar, the trial judge shall promptly furnish a report on the case under appeal summarizing the material facts and in particular the facts relevant to those matters raised by the notice of appeal and on any matter relating to the proceeding that is specified in the request.

  • (2) A trial judge furnishing a report under this rule shall concurrently furnish a transcript of any reasons delivered in open court for conviction and sentence, and in the case of a trial by judge and jury, a transcript of the trial judge’s charge to the jury, the objections to the charge and related rulings, if any, and any questions from the jury and the answers to them.

Appeal Books

Contents of Appeal Book

  •  (1) Except in an inmate appeal, the appeal book shall contain, in consecutively numbered pages arranged in the following order, a copy of,

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

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

    • (c) the order granting the leave to appeal, if any, and any order or direction made with reference to the appeal;

    • (d) the information or indictment, including all endorsements;

    • (e) the formal order or decision appealed from, if any, as signed and entered;

    • (f) the reasons for judgment, if not included in the transcript of the trial or hearing, together with a further typed or printed copy if the reasons are handwritten;

    • (g) any order for release from custody pending appeal and any other order suspending the operation of the sentence;

    • (h) all documentary exhibits filed at the trial arranged in order by date or, where there are documents having common characteristics, arranged in separate groups in order by date;

    • (i) all maps, plans, photographs, drawings and charts that were before the trial judge and are capable of reproduction;

    • (j) the agreed statement of facts, if any;

    • (k) where there is an appeal as to sentence, the pre-sentence report, the criminal record of the convicted person and any exhibits filed on the sentencing proceedings;

    • (l) any notice of constitutional question served in accordance with section 109 of the Courts of Justice Act, and proof of service of the notice upon the Attorney General of Ontario and the Attorney General of Canada;

    • (m) any agreement made by the parties under subrule 8(18);

    • (n) the certificate referred to in subrule 18(2); and

    • (o) a certificate in Form 61H of the Rules of Civil Procedure signed by the appellant’s solicitor, or on the solicitor’s behalf by someone specifically authorized to do so, stating that the contents of the appeal book are complete and legible.

    Material may be omitted from appeal book

  • (2) Notwithstanding subrule (1), with the consent of the respondent or as directed by a judge, some or all of the material referred to in paragraphs (1)(h) and (i) may be omitted from the appeal book.

    Form of appeal book

  • (3) The appeal book, other than an appeal book prepared by the Attorney General, shall be bound front and back in buff cover stock and the appeal book prepared by the Attorney General shall be bound front and back in grey cover stock.

  • (4) Notwithstanding subrule (1), the parts of the appeal book may be divided by numbered tabs if the pages within the tabs are consecutively numbered.

  • (5) The Registrar may refuse to accept an appeal book that does not comply with these rules or is not legible, and in that case the appeal book shall not be filed without a direction from a judge.

Appeal Book for Unrepresented Appellant

 Where the appellant is not represented by counsel, the Registrar may require the Attorney General to prepare an appeal book.

Factums

Heading of factum

  •  (1) Except in an inmate appeal, all parties to an appeal and persons who have been granted the right to be heard shall deliver a factum, to be entitled and described on its cover as “Appellant’s Factum”, “Respondent’s Factum” or as the case may be.

Factum to be signed and dated

  • (2) A factum shall be signed by counsel or on counsel’s behalf by someone specifically authorized to do so, or by the appellant or respondent if he or she has no counsel, and the signature shall be followed by the typed name of counsel, if any, and the date.

Contents of appellant’s factum

  • (3) Except in an appeal from sentence only, the appellant’s factum shall consist of,

    • (a) Part I, with the caption “Statement of the Case”, and containing a statement identifying the appellant and the court appealed from, the nature of the charge or charges, the result in that court, and whether the appeal is from conviction, conviction and sentence, acquittal or other disposition;

    • (b) Part II, with the caption “Summary of the Facts”, and containing a concise summary of the facts relevant to the issues on the appeal, with such reference to the transcript of evidence by page and line as is necessary;

    • (c) Part III, with the caption “Issues and Law”, and containing a statement of each issue raised, immediately followed by a concise statement of the law and authorities relating to that issue;

    • (d) Part IV, with the caption “Order Requested”, and containing a statement of the order that the court will be asked to make;

    • (e) Schedule A, with the caption “Authorities to be Cited”, and containing a list of the authorities referred to, with citations, in the order in which they appear in Part III or in alphabetical order; and

    • (f) Schedule B, with the caption “Relevant Legislative Provisions” setting out the text of all relevant statutes except any provisions from the Code and the Young Offenders Act (Canada).

Contents of respondent’s factum

  • (4) The respondent’s factum shall consist of,

    • (a) Part I, with the caption “Respondent’s Statement as to Facts”, containing a statement of the facts in Part II of the appellant’s factum that the respondent accepts as correct or substantially correct and those facts with which the respondent disagrees and a concise summary of any additional facts relied on, with such reference to the transcript of evidence by page and line as is necessary;

    • (b) Part II, with the caption “Response to Appellant’s Issues”, and containing the position of the respondent with respect to each issue raised by the appellant, immediately followed by a concise statement of the law and the authorities relating to that issue;

    • (c) Part III, with the caption “Additional Issues”, and containing a statement of any additional issues raised by the respondent, immediately followed by a concise statement of the law and the authorities relating to that issue;

    • (d) Part IV, with the caption “Order Requested”, and containing a statement of the order that the court will be asked to make;

    • (e) Schedule A, with the caption “Authorities to be Cited”, and containing a list of the authorities referred to, with citations, in the order in which they appear in Parts II and III or in alphabetical order;

    • (f) Schedule B, with the caption “Relevant Legislative Provisions” setting out the text of all relevant statutes except any provisions from the Code and the Young Offenders Act (Canada).

Length of factum

  • (5) Unless ordered by the Registrar or a judge, the factum, excluding the schedules, shall not exceed thirty pages in length.

Form of factum

  • (6) The appellant’s factum shall be bound front and back in blue cover stock and the respondent’s factum shall be bound front and back in green cover stock.

  • (7) The factum shall be printed on good quality white paper 216 millimetres by 279 millimetres in size and the text shall be printed, typewritten, written or reproduced legibly on one side only with double spaces between the lines, except for quotations which may be single spaced, and margins of approximately forty millimetres on the left-hand side.

  • (8) The characters used shall be of at least 12 point or 10 pitch size.

  • (9) Back sheets and covers shall be of 176g/m2 cover stock.

  • (10) The Registrar may refuse to accept a factum which does not comply with these rules, and in that case, the factum shall not be filed without a direction from a judge.

Sentence Appeals

Sentence appeal factum to be in Form D

  •  (1) In an appeal from sentence only, the factum of the appellant, other than the Attorney General, shall be in Form D.

  • (2) Where the Attorney General is the appellant, such changes shall be made in the form of the factum as are required.

  • (3) On the hearing of an appeal from sentence only, the appellant shall be limited to fifteen minutes for the presentation of oral argument and the respondent to ten minutes.

  • (4) The appellant shall be allowed five minutes to reply.

  • (5) In cases of unusual difficulty the panel hearing the appeal may enlarge these time limits as required.

Perfecting the Appeal

Service and filing

  •  (1) Except in an inmate appeal, the appellant shall serve on every other party to the appeal and any person entitled by statute or an order of the court to be heard upon the appeal, one copy of the appeal book, one copy of the transcript and one copy of the appellant’s factum and immediately thereafter shall file with the Registrar proof of service of the appeal book, the transcript and the factum and,

    • (a) in appeals directed to be heard by five judges, five copies of the appeal book and six copies of the appellant’s factum; and

    • (b) in all other appeals, three copies of the appeal book and four copies of the appellant’s factum.

Certificate of perfection

  • (2) The appellant shall file with the Registrar two copies of a certificate of perfection stating,

    • (a) that the appeal book, transcript and appellant’s factum have been served and filed;

    • (b) that the transcript is complete;

    • (c) the estimated total length of time for oral argument; and

    • (d) the name, address and telephone number of the solicitor for each party to the appeal, unless the respondent is the Attorney General, and of any person entitled by statute or an order to be heard on the appeal, or where a party or person acts in person, his or her name, address for service and telephone number.

Time for perfection

  • (3) Except in an appeal from the decision of a judge of the Ontario Court (General Division) not sitting as a trial judge where no transcript is required other than that filed in the Ontario Court (General Division) and an appeal from sentence only, the appellant shall perfect the appeal by complying with subrules (1) and (2) within ninety days after the transcript has been delivered to the Court of Appeal or such longer period as is permitted by a judge or the Registrar.

  • (4) In the case of an appeal from the decision of a judge of the Ontario Court (General Division) not sitting as a trial judge where no transcript is required other than that filed in the Ontario Court (General Division) and an appeal from sentence only, the appellant shall perfect the appeal by complying with subrules (1) and (2),

    • (a) where no transcript of evidence other than that filed in the proceedings below is required for the appeal, within sixty days after filing the notice of appeal or such longer period as is permitted by a judge or the Registrar;

    • (b) where a transcript of evidence is required for the appeal, within thirty days after the transcript has been delivered to the Court of Appeal or such longer period as is permitted by a judge or the Registrar; or

    • (c) where an agreed statement of facts is required under subrule 8(12), within sixty days after the transcript has been delivered to the Court of Appeal or such longer period as is permitted by a judge or the Registrar.

Motion for Directions

 The Registrar or any party to the appeal may, on notice, make a motion to a judge for directions in respect of the conduct of the appeal.

Failure to Perfect Appeal

Notice of failure to perfect

  •  (1) Where an appellant has not perfected an appeal within the time limits set out in rule 18, the Registrar may serve notice on the appellant and counsel for the appellant that the appeal may be placed before the Court of Appeal to be dismissed as an abandoned appeal unless the appeal is perfected within ten days after the service of the notice.

Notice of intent to have appeal dismissed

  • (2) Where an appellant has not perfected an appeal within the time limits set out in rule 18, the respondent, on notice to the appellant and counsel for the appellant, may request the Registrar to have the appeal placed before the Court of Appeal to be dealt with in accordance with subrule (1), or may move before a judge for directions.

Powers of Court

  • (3) The Court of Appeal in considering an appeal referred to it under subrule (1) may,

    • (a) dismiss the appeal as an abandoned appeal;

    • (b) if the appellant was granted release from custody pending the appeal, revoke the release order and direct that a warrant issue for the arrest of the appellant;

    • (c) permit the appeal to remain on the list of pending appeals upon such conditions, if any, as the court considers fit, including conditions respecting the time limits for filing the transcript, the factum and the appeal book.

Service of copy of order

  • (4) The Registrar shall serve the appellant with a copy of any order or direction made or given under subrule (3).

Manner of service

  • (5) Unless a judge otherwise orders, service of a notice on the appellant and counsel under this rule shall be by prepaid registered mail to the addresses as set out in the notice of appeal or as filed with the Registrar.

Listing Appeals

Notice of date of appeal

  •  (1) Subject to the direction of the Chief Justice of Ontario, the Associate Chief Justice of Ontario or a direction given by a judge as a term of an order made by him or her relating to the conduct of the appeal, the Registrar shall fix the day of the hearing of the appeal and notify counsel, or the party, as the case requires.

Date not to be fixed until appeal perfected

  • (2) Unless ordered by a judge or the Registrar, an appeal shall be listed for hearing only after being perfected in compliance with rule 18.

Date for filing respondent’s factum

  • (3) The respondent’s factum shall be served and filed not later than ten days before the week in which the appeal is to be heard.

Appeals may be scheduled in afternoon

  • (4) In scheduling appeals, the Registrar, where appropriate, may prepare separate lists for the morning and for the afternoon.

Duty on appellant to perfect appeal and obtain date

  • (5) Where the appellant has been granted release from custody pending appeal, the appellant or counsel on his or her behalf shall take all practicable steps to obtain a date for the hearing of the appeal which precedes the date on which the appellant is required to surrender into custody.

Books of Authorities

Filing books of authorities

  •  (1) Books of authorities shall be filed no later than Thursday in the week before the week in which the appeal is scheduled to be heard.

Only authorities to be referred to included

  • (2) The book of authorities shall contain only those authorities intended to be referred to in oral argument.

Marking of authorities

  • (3) The authorities shall be marked to indicate those passages intended to be referred to in oral argument.

Copies to be legible

  • (4) The authorities shall be reproduced legibly.

    Duplication of authorities to be avoided

  • (5) A party shall not duplicate authorities already filed with the court by another party.

Colour of cover

  • (6) The book of authorities shall be bound front and back in coloured stock of the same colour as the party’s factum.

Intervention

  •  (1) Any person interested in an appeal between other parties may by leave of the court, the Chief Justice of Ontario or the Associate Chief Justice of Ontario, intervene in the appeal upon such terms and conditions and with such rights and privileges as the court, the Chief Justice or the Associate Chief Justice determines.

  • (2) The factum of the intervener shall be bound front and back in white coloured stock.

Appeals in Writing - (Non-inmate)

Appellant to file appeal books, transcripts and written argument

  •  (1) Where an appellant in an appeal that is not an inmate appeal indicates to the court that he or she desires to present the case on appeal and the argument in writing under subsection 688(3) of the Code, the appellant shall file an appeal book, transcript of evidence, if any, and all other material, except a factum, that would be required if the appeal were to be heard with oral argument, and file the written argument within thirty days after the material has been filed.

Appeal to be considered initially by single judge

  • (2) The material in the appeal shall be considered by a judge, who may give directions whether the Attorney General should be required to file written argument as respondent to the appeal and prescribe the times for doing so and for the filing of any reply in writing by the appellant.

Procedure where judge considers appeal should be dismissed

  • (3) If the judge considers that no written argument from the Attorney General is required, the judge shall prepare draft written reasons for dismissing the appeal, and the file shall then be referred to two members of the criminal panel.

  • (4) If the two members of the criminal panel agree with the judge and sign the reasons for dismissal the appeal shall be dismissed and the reasons for dismissal shall be dealt with as if the reasons were a reserved judgment.

Procedure where criminal panel requires argument from Crown

  • (5) If one of the two members of the criminal panel considers that written submissions should be required from the Attorney General, directions in that respect shall be given in accordance with the provisions of subrule (2).

  • (6) Where submissions have been required from the Attorney General, a copy of the submissions shall be transmitted to the appellant together with a notification that he or she may make written submissions in reply within fourteen days after receipt of the submissions of the Attorney General.

  • (7) When the appellant’s submissions in reply have been received, or the time for submitting them has expired, the appeal shall be referred for disposition to a criminal panel, which shall give written reasons for judgment, to be dealt with as if the reasons were a reserved judgment.

Criminal panel may require oral submissions

  • (8) Notwithstanding subrule (7), the criminal panel considering the appeal under that subrule may direct that the appeal be listed for hearing, and give notice to the appellant that he or she may attend and make oral submissions.

Service

  • (9) Unless a judge otherwise orders, service of a notice on the appellant under this rule shall be by ordinary mail to the address as set out in the notice of appeal or as filed with the Registrar.

Inmate Appeals - Notice of Appeal and Appeal Books

Supply of inmate notice of appeal

  •  (1) The senior official of a penal or reform institution shall supply to any inmate in his or her custody, upon request, a form of notice of appeal in Form A.

Transmittal of documents

  • (2) The senior official shall transmit to the Registrar any notice of appeal served upon him or her, and shall forthwith deliver to the inmate concerned any documents that are transmitted to the inmate by the Registrar, and shall inform the Registrar of having done so.

Preparation of appeal book by Attorney General

  • (3) Where an inmate appeal is directed to be listed for hearing, the Registrar shall request the Attorney General to prepare appeal books for the use of the court and the appellant which shall contain,

    • (a) a table of contents;

    • (b) the notice of appeal;

    • (c) the report of the trial judge;

    • (d) the information or indictment;

    • (e) all exhibits capable of reproduction;

    • (f) the order granting leave to appeal, if any;

    • (g) where the appeal is or includes an appeal against sentence, the pre-sentence report, if any, and the criminal record of the accused, if any;

    • (h) the transcript of the reasons for judgment in respect of conviction and sentence;

    • (i) in case of a trial by judge and jury, the trial judge’s charge to the jury, the objections to the charge, if any; and

    • (j) any questions from the jury and the answers thereto.

Registrar may excuse compliance

  • (4) The Registrar may, in writing, in an appropriate case, excuse the Attorney General from complying with the requirements of subrule (3), or any of them.

Attorney General to provide copies of appeal books

  • (5) The Attorney General shall mail one copy of the appeal book to the appellant and file three copies of the appeal book with the Registrar.

Inmate Appeals - Extension of Time

 If the notice of appeal in Form A is not served within the time limited by rule 4, the appellant shall set out in the place provided therefor in Form A the grounds for seeking an extension of time.

Inmate Appeals - Presence of Appellant

  •  (1) Where the appellant in an inmate appeal has indicated in the notice of appeal that he or she desires to present the appeal in person and the notice of appeal was served within the time limited by rule 4, or an extension of time has been granted, the appeal shall be listed for hearing.

  • (2) Notwithstanding subrule (1), an appellant in an inmate appeal who has indicated that he or she desires to present the appeal in person may request that his or her appeal be dealt with as an appeal in writing, and thereupon a judge may direct that the appeal proceed in accordance with rule 28.

Inmate Appeals - Appeals in Writing

Inmate to be given trial judge’s report and time to prepare argument

  •  (1) Where the appellant in an inmate appeal has indicated in the notice of appeal that he or she desires to present the case on appeal and argument in writing and the notice of appeal was served within the time limited by rule 4 or an extension of time has been granted, the Registrar shall transmit to the appellant the report of the trial judge under rule 13 together with a notification that the appellant has the right to present further written submissions within fourteen days (unless this has already been done in connection with an application for an extension of time to appeal).

Appeal to be considered initially by single judge

  • (2) The appeal shall be considered by a judge.

  • (3) If the judge considers that the appeal has sufficient merit to require argument from the Attorney General, the judge shall so endorse the file, whereupon the Registrar shall transmit to the Attorney General copies of the notice of appeal, the written submissions of the appellant (if not included in the notice of appeal), the report of the trial judge mentioned in subrule (1) and any further written submissions of the appellant in respect of the report, together with notification that the submissions of the Attorney General in answer to the appeal should be made in writing within twenty days after the receipt of the material from the Registrar and that four copies thereof be filed with the Registrar.

Procedure where judge considers appeal should be dismissed

  • (4) If the judge considers that the appeal does not have sufficient merit to require argument from the Attorney General, the judge shall write draft reasons for judgment dismissing the appeal, and refer the appeal with the reasons to two members of the criminal panel.

  • (5) If the two members of the criminal panel agree with the judge and sign the reasons for judgment, the appeal shall be dismissed and the reasons for dismissal dealt with as if the reasons were a reserved judgment.

Procedure where criminal panel requires argument from Attorney General

  • (6) If one of the two members of the criminal panel considers that written submissions should be required from the Attorney General, the provisions of subrule (3) where argument is required from the Attorney General apply.

  • (7) Where submissions have been required from the Attorney General, a copy of them shall be transmitted to the appellant by the Registrar together with a notification that he or she may make written submissions in reply within fourteen days after receipt of the submissions of the Attorney General.

  • (8) When the appellant’s submissions in reply have been received, or the time for submitting them has expired, the appeal shall be referred for disposition to the criminal panel, which shall give written reasons for judgment, to be dealt with as if the reasons were a reserved judgment.

Criminal panel may require oral submissions

  • (9) Notwithstanding subrule (8), the criminal panel considering the appeal under that subrule may direct that the appeal be listed for hearing, and in that event may request the Attorney General to arrange for the attendance of the appellant at the hearing.

Reasons for Judgment

 In every appeal the Registrar shall notify the trial judge or the judge whose order was the subject of the appeal of the result of the appeal and where reasons are given in writing or given orally and later reduced to writing, the Registrar shall send a copy of the reasons,

  • (a) in an inmate appeal or an appeal where the appellant was not represented by counsel, to the appellant;

  • (b) in an appeal conducted by a solicitor, to the solicitor for the appellant;

  • (c) to the trial judge or the judge whose order is the subject of the appeal;

  • (d) to the Attorney General;

  • (e) to the solicitor for the respondent and any person granted intervener status or to the respondent and the intervener, where not represented by counsel;

  • (f) in an appeal from the Ontario Court (General Division), to the Chief Justice of the Ontario Court and the regional senior judge of the region where the trial was conducted;

  • (g) in an appeal from the Ontario Court (Provincial Division), to the Chief Judge of the Ontario Court (Provincial Division) and the regional senior judge of the region where the trial was conducted.

Abandonment of Appeals

Service of notice of abandonment

  •  (1) Where an appellant desires to abandon the appeal, the appellant shall serve in the manner provided by rule 5 a notice of abandonment signed by the solicitor of record in the appeal, or by the appellant (in which case the signature shall be verified by affidavit or witnessed by a solicitor or by an officer of the institution in which the appellant is confined).

Single judge may dismiss appeal

  • (2) A judge may thereupon dismiss the appeal as an abandoned appeal, without the attendance of counsel.

Court Reporter to be notified

  • (3) Where an appeal has been abandoned, the appellant or the solicitor of record shall forthwith notify the court reporter in writing.

Release from Custody Pending Appeal - Sentence Appeal

 Where an appellant seeks to appeal against sentence only and also seeks his or her release from custody pending the hearing of the appeal, a judge shall first hear and determine the application for leave to appeal the sentence.

Release from Custody Pending Appeal - Contents of Affidavit

Contents of appellant’s affidavit

  •  (1) Upon an application for release from custody pending appeal, the appellant shall file an affidavit or affidavits, including where practicable the appellant’s own affidavit, establishing,

    • (a) the particulars respecting the conviction;

    • (b) the judicial interim release status of the appellant and particulars of any bail pending trial;

    • (c) any grounds of appeal not specified in the notice of appeal;

    • (d) the date of birth of the appellant;

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

    • (f) the appellant’s employment prior to conviction, and whether the appellant expects to be employed if released and where;

    • (g) the appellant’s criminal record, if any;

    • (h) where the appeal is as to sentence only, what unnecessary hardship would be caused if the appellant were detained in custody; and

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

Attorney General may file affidavit

  • (2) Where the Attorney General desires to assert that the detention of the appellant is necessary and to rely on material other than that contained in the material filed by the appellant, the Attorney General shall file an affidavit setting out the facts upon which the Attorney General relies.

Parties may cross-examine on affidavits

  • (3) The appellant and the Attorney General may cross-examine upon affidavits filed by the opposite party, in accordance with the Rules of Civil Procedure.

Judge may dispense with compliance

  • (4) A judge may dispense with the filing of the affidavits referred to in subrules (1) and (2) and act upon a statement of facts agreed upon by counsel for the appellant and the Attorney General.

Conditions of Release

 Unless otherwise ordered by the judge hearing the application, all orders 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 Registrar of his or her place of residence.

Variation of Bail

Judge may vary order

  •  (1) A judge may, on cause being shown, cancel an order previously made under section 679 of the Code and may make any order that could have been made under that section.

Order may be made without attendance of counsel

  • (2) 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

  • (3) Where the appellant seeks an order under subrule (2) which varies a condition referred to in paragraph 33(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 rule 8 or 18 and, where applicable, a statement of the earliest feasible date on which the appeal may be heard.

Definition of Justice

 For the purposes of section 679 of the Code, justice means any person in Ontario having the jurisdiction of a justice of the peace.

Post Sentence Report

  •  (1) A convicted person may apply to a judge for an order that a post-sentence report be prepared.

  • (2) In an inmate appeal, a judge, with the consent of the appellant, may order that a post-sentence report be prepared.

  • (3) Where a post-sentence report is ordered by a judge under subrule (1) or (2), the report shall be prepared in writing by a probation officer and filed with the Registrar as soon as is practicable and the Registrar shall forward a copy of the report to counsel for each party to the appeal and to any party who is not represented by a solicitor.

Notice

 An application referred to in rules 31 to 36 shall be on three clear days notice unless the respondent consents to, and a judge or the Registrar permits, a shorter period of notice.

APPEALS UNDER PART XX.1 - MENTAL DISORDERDefinitions and Application

  •  (1) In rules 39 to 47 the terms accused, court, disposition, hospital, party, placement decision, Review Board and verdict of not criminally responsible on account of mental disorder have the same meaning as in section 672.1 of the Code.

  • (2) Rules 39 to 47 apply to appeals under Part XX.1 of the Code.

  • (3) Except where inconsistent with rules 39 to 47, rules 1 (interpretation and definitions), 2 (application of civil rules), 6 (order without attendance of counsel), 7 (extension or abridgement of time), 9 (dismissal for failure to comply with rule re: transcripts), 19 (motion for directions), 21 (listing appeals), 22 (books of authorities), 23 (intervention), 24 (appeals in writing - non- inmate), 26 (extension of time), 29 (reasons for judgment), 30 (abandonment of appeals), 36 (post-sentence report) and 37 (notice) apply to appeals under Part XX.1 of the Code where appropriate and with necessary modifications.

Notice of Appeal

Form of notice of appeal

  •  (1) The notice of an appeal under section 672.72 of the Code shall be in Form E.

Time of service of notice of appeal

  • (2) The notice of appeal shall be served within fifteen days after the day on which the parties are provided with a copy of the disposition or placement decision and the reasons for it or within any further time that the Court of Appeal or a judge directs.

Manner of service of notice of appeal

  • (3) Service of the notice of appeal shall be effected,

    • (a) where the appellant is in custody and not represented by counsel, by delivering the notice of appeal to the person in charge of the hospital or institution in which the accused is in custody;

    • (b) in an appeal other than one mentioned in paragraph (a), by delivering to the office of the Registrar or by mailing to the Registrar by registered mail three copies of the notice of appeal and by mailing by registered mail to the person in charge of the hospital or other institution in which the accused, if such is the case, is in custody one copy of the notice of appeal and, in addition, in an appeal by the Attorney General or by a party other than the accused, by personal service on the accused or as may be directed by a judge.

  • (4) If the notice of appeal is not served within the time limited by this rule, the accused shall set out in Form E in the place provided therefor the grounds for applying for an extension of time.

Person in charge of hospital or other institution to supply forms and transmit material

  • (5) The person in charge of a hospital or other institution shall supply to any accused in his or her custody, upon request, a form of notice of appeal in Form E.

  • (6) The person in charge shall transmit to the Registrar any notice of appeal served upon him or her, and shall deliver forthwith to the accused any documents that are transmitted to the accused by the Registrar, and shall inform the Registrar of having done so.

Duty on Registrar

  • (7) Upon receipt of a notice of appeal, the Registrar shall transmit forthwith a copy of it to the court or Review Board that made the disposition or the Review Board that made the placement decision and to the Attorney General, except where the Attorney General is the appellant.

Transmission of original papers

  • (8) Upon receipt of the notice of appeal, the court or Review Board shall transmit forthwith to the Registrar,

    • (a) a copy of the disposition or placement decision;

    • (b) all exhibits capable of reproduction filed with the court or Review Board or copies of them; and

    • (c) all other material in its possession respecting the hearing.

Withheld information

  • (9) Where the material transmitted under subrule (8) includes disposition information withheld from the accused or any other person under subsection 672.51(3) or (5) of the Code, that information shall be segregated from the other material and clearly identified as being withheld information.

Transcripts

Where rule does not apply

  •  (1) This rule does not apply where the appellant is the accused and is not represented by a solicitor.

Certificate of reporter to accompany notice of appeal

  • (2) The appellant shall at the time the notice of appeal is filed with the Registrar file a certificate of the court reporter or of the reporter of the proceedings before the Review Board that copies of the transcript as required by these rules have been ordered.

  • (3) Subrules 8(3) to (6) and (14) to (18) apply with necessary modifications to the transcripts required by this rule.

Contents of transcript

  • (4) Unless otherwise ordered by a judge, the transcript shall include,

    • (a) where the appeal is from a disposition by the court following a finding of unfitness, all evidence and proceedings relating to the fitness issue and the disposition resulting therefrom;

    • (b) where the appeal is from a disposition by the court following a verdict of not criminally responsible on account of mental disorder, all evidence and proceedings following the verdict; and

    • (c) where the appeal is from a disposition or placement decision by the Review Board, all evidence and proceedings before the Review Board.

Agreed statement of facts in some cases

  • (5) Where the appeal is from a disposition following a finding of unfitness and the issue of fitness was postponed under subsection 672.25(2) of the Code, then within fifteen days after the filing of the notice of appeal the parties shall file an agreed statement of facts as to the evidence heard in respect of the offence which shall be included in the appeal book.

  • (6) In the event of difficulty in settling the statement of facts, counsel for either party may, on notice, attend upon a judge for directions.

Appeal Books

Contents of Appeal Book

  •  (1) Except where the appellant is the accused and is not represented by a solicitor, the appeal book shall contain in consecutively numbered pages arranged in the following order, a copy of,

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

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

    • (c) the information or indictment, including all endorsements;

    • (d) the placement decision or disposition;

    • (e) the reasons for the placement decision or disposition;

    • (f) any order made under section 672.76 of the Code, any other order or direction made in respect of the appeal and any agreement made by the parties;

    • (g) all documentary exhibits filed at the hearing before the court or the Review Board arranged in order by date or, where there are documents having common characteristics, arranged in separate groups in order by date, except disposition information which has been withheld from the accused or any other party under subsection 672.51(3) or (5) of the Code;

    • (h) the agreed statement of facts, if any;

    • (i) any notice of constitutional question served in accordance with section 109 of the Courts of Justice Act and proof of service upon the Attorney General of Ontario and the Attorney General of Canada.

Material may be omitted

  • (2) Notwithstanding subrule (1), with the consent of the parties or as directed by a judge, some or all of the material referred to in paragraph (1)(g) may be omitted from the appeal book.

Application

  • (3) Subrules 14(3), (4) and (5) apply with necessary modifications to the appeal books required by this rule.

Preparation of appeal book by Attorney General

  • (4) Where the appellant is the accused and he or she is not represented by counsel, the Registrar shall request the Attorney General to prepare an appeal book.

Registrar may excuse compliance

  • (5) The Registrar may, in writing, in an appropriate case, excuse the Attorney General from complying with subrule (4).

Attorney General to provide copies of appeal books

  • (6) The Attorney General shall mail one copy of the appeal book to the appellant and to the person in charge of the hospital or other institution in which the accused is in custody and file three copies of the appeal book with the Registrar.

Factums

Heading of factum

  •  (1) Except where the appellant is the accused and is not represented by a solicitor, the appellant shall deliver a factum, to be entitled and described on its cover as “Appellant’s Factum”.

  • (2) All other parties to the appeal shall each deliver a factum to be entitled and described on its cover as “Respondent’s Factum”, or as the case may be.

Contents of factum

  • (3) The appellant’s factum shall be prepared in accordance with subrule 16(3), with necessary modifications, and the factum of any other party to the appeal shall be prepared in accordance with subrule 16(4), with necessary modifications.

Application

  • (4) Subrules 16(2), (5), (6), (7), (8), (9) and (10) apply, with necessary modifications, to the factums required by this rule.

Perfecting the Appeal

Serving and filing

  •  (1) Except where the appellant is the accused and is not represented by a solicitor, the appellant shall serve on each party to the appeal one copy of the appeal book, one copy of the transcript and one copy of the appellant’s factum, and immediately thereafter shall file with the Registrar proof of service of the appeal book, the transcript and the factum and,

    • (a) in appeals directed to be heard by five judges, five copies of the appeal book and six copies of the appellant’s factum; and

    • (b) in appeals directed to be heard by three judges, three copies of the appeal book and four copies of the appellant’s factum.

Certificate of perfection

  • (2) The appellant shall file with the Registrar two copies of a certificate of perfection stating,

    • (a) that the appeal book, transcript and appellant’s factum have been served and filed;

    • (b) that the transcript is complete;

    • (c) the estimated total length of time for oral argument; and

    • (d) the name, address and telephone number of the solicitor for each party to the appeal, unless the respondent is the Attorney General, or where a party acts in person, his or her name, address for service and telephone number.

Time for perfection

  • (3) The appellant shall perfect the appeal by complying with subrules (1) and (2) within thirty days after the transcript has been delivered to the Court of Appeal or such longer period as is permitted by a judge or the Registrar.

Service of factum on other parties to appeal

  • (4) Any other party to the appeal shall file four copies of his or her factum with the Registrar and serve one copy of the factum on each other party to the appeal not later than ten days before the week in which the appeal is to be heard.

Failure to Perfect Appeal

 Rule 20 applies, with necessary modifications, where an appellant has not perfected an appeal within the time limits set out in rule 43.

Interim Orders Respecting Disposition and Placement Decisions

Application to single judge

  •  (1) An application for an order under section 672.76 of the Code shall be made to a judge.

Contents of application

  • (2) The notice of application shall specify the order sought to be made.

Contents of affidavit

  • (3) The applicant shall file an affidavit or affidavits establishing,

    • (a) the particulars respecting the disposition or placement decision;

    • (b) the particulars respecting any disposition or order for the interim release or detention of the accused, as the case may be, that was in effect immediately before the disposition or placement decision appealed from took effect;

    • (c) the reasons that the mental condition of the accused justifies the order sought to be made;

    • (d) any other relevant facts that the applicant alleges justify the order sought to be made; and

    • (e) the date by which the appeal can be expected to be perfected.

  • (4) The application shall be on three clear days notice to the other parties unless otherwise ordered by a judge.

Procedure where Appellant Unrepresented

 Where the appellant is the accused and is not represented by a solicitor, the appeal shall be conducted, as nearly as may be, in the same manner as an inmate appeal under rules 1 to 37.

Combined Appeal

  •  (1) Where an appellant is appealing both a disposition or a placement decision and a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the appellant, in the preparation of the transcript, appeal book and factum for the appeal, shall consolidate, to the extent feasible, the provisions respecting transcripts, appeal books and factums set out in rules 40, 41 and 42 with the corresponding provisions set out in rules 8, 14 and 16.

  • (2) A judge may make such order in respect of the matters referred to in subrule (1) as is considered just in order to secure the fair and expeditious conduct of the appeal.

Transitional

  •  (1) In this rule and in rule 49, preceding rules means rules 13 to 40, set out in Part II of the Rules Respecting Criminal Proceedings entitled “Appeals to the Court of Appeal in Criminal Matters”, published on the 11th day of December, 1985, in the Canada Gazette, Part II, as Statutory Instrument SI/85-205, made on the 4th day of September, 1985, and brought into force on the 1st day of January, 1986.

  • (2) These rules apply to all appeals, whether commenced before or after these rules come into force, except in respect of steps already taken under the preceding rules.

  • (3) Notwithstanding rule 49 and subrule (2), a judge may make an order that an appeal, or a step in the appeal, be conducted under these rules or the preceding rules or make any other order that is considered just in order to secure the fair and expeditious conduct of the appeal.

Commencement and Revocation

 These rules come into force on the first day of September, 1993, and on that day the preceding rules are revoked.

FORM A

NOTICE OF APPEAL FOR INMATE APPEAL
COURT OF APPEAL FOR ONTARIO
To: The Registrar
Name of appellant
Place of trial
Name of court1
Name of judge
Offence(s) of which convicted2
Plea at trial
Sentence imposed
Date of conviction
Date of imposition of sentence
Name and address of place at which appellant is in custody

I, the above named appellant, hereby give notice that I desire to appeal to the Court of Appeal against my3

on the grounds hereinafter set forth in this notice.

I desire to present my case and argument, whether it be for leave to appeal4 or by way of appeal where leave is not necessary5,

  • (a) in person; or

  • (b) in writing6.

If a new trial is ordered and you have a right to trial by jury do you wish trial by jury?

Dated this day of , 19

Signed7Appelant

Numbered instructions set out below refer to corresponding numbers on notice.
INSTRUCTIONS
1. Ontario Court (General Division) or Ontario Court (Provincial Division).
2. E.g. theft, forgery
3. If you wish to appeal against conviction, you must write the word “conviction”. If you wish to appeal against sentence, you must write the word “sentence”. If you wish to appeal both conviction and sentence, you must write the words “conviction and sentence”. If you are convicted of more than one offence and wish to appeal against some only of the convictions or sentences, you must state clearly the convictions or sentences against which you wish to appeal.
4. See item #1 in the Notes set out below.
5. Stroke out either (a) or (b).
6. If you desire to submit your case and argument in writing you may deliver your written argument with this notice of appeal or you may deliver your written argument within fourteen days after receipt by you of the report of the trial judge which will be sent to you later.
7. This notice must be signed by the appellant. If the appellant cannot read or write he or she must affix his or her mark in the presence of a witness. The name and address of the witness must be given.
NOTES
1. (1) If your appeal against conviction involves a question of law alone you have a right of appeal.
  • (2) If your appeal against conviction is upon any ground other than a question of law then you have no right of appeal unless leave is granted by the Court of Appeal.

  • (3) You have no right of appeal against sentence unless leave to appeal is granted by the Court of Appeal and your notice of appeal includes an application for leave to appeal.

2. (1) Whether your appeal is from conviction, sentence or both, this notice must be served within thirty days after the date of the sentence(s).
  • (2) If this notice is served beyond that time then you must apply for an extension of time by completing the application set out below.

  • (3) If you are in custody, this notice of appeal must be served by delivering it to the senior official of the institution in which you are confined.

APPLICATION FOR EXTENSION OF TIME

I hereby apply for an extension of time within which I may launch my appeal, upon the following grounds: (here state the reasons for delay)

Signed Date
The Appellant, (strike out inapplicable provisions)
  • (a) appeals against his or her conviction upon grounds involving a question of law alone;

  • (b) applies for leave to appeal his or her conviction upon grounds involving a question of fact alone or a question of mixed law and fact, and if leave be granted, hereby appeals against the conviction;

  • (c) applies for leave to appeal against sentence, and if leave is granted, hereby appeals against the sentence.

GROUNDS OF APPEAL

These must be filled in before the notice is sent to the Registrar. The appellant must here set out the grounds or reasons why he or she alleges the conviction should be quashed or the sentence reduced. If one of the grounds set out is “misdirection to the jury” by the judge, particulars of the alleged misdirection must be set out in this notice.

FORM B

NOTICE OF APPEAL OR APPLICATION FOR LEAVE TO APPEAL
COURT OF APPEAL FOR ONTARIO
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
A. B
Appellant
NOTICE OF APPEAL
PARTICULARS OF CONVICTION
1. Place of conviction1
2. Name of judge
3. Offence(s)2 of which accused convicted
4. Section(s) of Criminal Code under which accused convicted
5. Plea at trial
6. Length of trial
7. Sentence imposed
8. Date of conviction
9. Date of sentence
10. If accused in custody, place of incarceration
The appellant, (use applicable provisions)
  • (a) appeals against his or her conviction upon grounds involving a question of law alone;

  • (b) applies for leave to appeal his or her conviction upon grounds involving a question of fact alone or a question of mixed law and fact, and if leave be granted hereby appeals against the conviction; or

  • (c) applies for leave to appeal against sentence, and if leave be granted hereby appeals against the sentence.

The grounds for appeal are
The relief sought is
The appellant’s address for service is
The appellant’s address3 is
Dated this day of 19
(Name, address and telephone number of appellant’s solicitor or, where none, the appellant)
To: The Registrar
Numbered notes set out below refer to corresponding numbers on notice.
  • Where the appeal is from the summary conviction appeal court, in addition to the matters specified in paragraphs 1 to 10 the Notice of Appeal must also specify the name of the judge of the appeal court, the date of the judgment of the appeal court and the result of the summary conviction Appeal.
  • The Notice of Appeal must refer to all offences under appeal.
  • These rules provide for service upon the appellant of certain material at the address provided in the Notice of Appeal. If the appellant changes address then the appellant must notify the Registrar.

FORM C

UNDERTAKING
I, [counsel for the appellant, or where none, the appellant] undertake that all transcripts required for the hearing of the appeal in the matter of Her Majesty the Queen and A.B. will be filed by 19
(Name, address and telephone number of appellant’s solicitor or, where none, the appellant)

FORM D

APPELLANT’S FACTUM - APPEAL FROM SENTENCE ONLY
COURT OF APPEAL FOR ONTARIO
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
NAME OF APPELLANT
Applicant/Appellant
APPELLANT’S FACTUM
PART I
PARTICULARS OF THE CASE
1. Place of conviction
2. Name of judge
3. Was the trial by judge and jury or judge alone
4. Offence(s) of which accused convicted
5. Section(s) of Code1 under which accused convicted
6. Plea at trial
7. Length of trial
8. Sentence imposed
9. Date of conviction
10. Date of sentence
11. Present place of incarceration (if applicable)
12. If appellant released on bail pending appeal, date of release2
13. Period spent in pre-trial or pre-sentence incarceration3
14. Parole eligibility date4
15. Date of mandatory release5
16. Names of co-accused and sentences imposed for offences upon which they were convicted6
17. Does appellant have prior criminal record7
18. Present employment8
19. Present marital status9
20. Appellant’s present age and age at time of offence
21. Was a pre-sentence report prepared10
22. Were any medical, psychological, psychiatric or similar reports referred to or filed at the sentence proceedings11
23. Was there a joint submission and if so what was it12
24. If no joint submission, briefly set out the position of prosecution and defence counsel on the sentence proceedings13
25. Was there a victim impact statement14
26. Will there be an application to admit fresh evidence and if so does the respondent consent to its admission15
PART II
SUMMARY OF THE FACTS
The facts of the offence16
The background of the appellant
Fresh evidence

(Here briefly summarize the fresh evidence which on consent has been filed with the court)

PART III
GROUNDS OF APPEAL
PART IV
ORDER REQUESTED

It is respectfully submitted that (here set out the relief requested, e.g. that leave to appeal sentence be granted, the appeal allowed and the sentence reduced).

All of which is respectfully submitted
Defence Lawyer
Counsel for the Appellant
Dated at this day of , 19
Notes
1. Reference should be to the Criminal Code section in force at the time of the commission of the offence.
2. Note that the Criminal Appeal Rules require that the release order be placed in the appeal book.
3. Where the incarceration was due to circumstances other than detention on the charge under appeal this should be made clear. Thus if for a portion of the time the appellant was serving sentence on another offence either this period should not be included or there should be a note to this effect.
4. This date is available from the sentence administrator of the institution where the appellant is incarcerated. Where the appellant is serving sentence for offences other than the offence under appeal, this should be made clear in a note.
5. This date is available from the sentence administrator of the institution where the appellant is incarcerated.
6. Where the appellant relies on disparity as a ground for varying the sentence additional details may be necessary and should be included in Part II of the factum. These details would include the co-accused’s criminal record, reference to the judge’s reasons for the sentence imposed on the co-accused, the involvement of the co-accused, whether the co-accused was convicted of other offences so that the totality principle affected the sentence, and any other information that would put the allegation of disparity in its proper context.
7. If the appellant has a prior criminal record it should be set out in detail in Part II of the factum.
8. In addition to present employment a fuller history of employment should be set out in Part II of the factum. If the appellant is in custody then refer to employment at the time of conviction or sentence.
9. Where relevant, the history of the appellant’s marital status should be referred to in Part II of the factum.
10. If there was a pre-sentence report prepared its contents should be briefly summarized in Part II of the factum. In addition, the entire report must be included in the appeal book.
11. Where relevant the contents of such reports should be briefly summarized in Part II of the factum. In addition, the complete report must be included in the appeal book, whether or not it was formally marked as an exhibit on the proceedings.
12. A joint submission would include where counsel have agreed on range of sentence to be submitted to the trial judge.
13. The “position” of counsel may simply be that the sentence should take a particular form, i.e. incarceration, or may be more specific, i.e. a specified term of months or years. If counsel did not make any suggestion as to the type or length of sentence this should be indicated as well.
14. If there was a victim impact statement its contents should be briefly summarized in Part II of the factum. If there was no victim impact statement but evidence was led as to the effect on the victim this too should be briefly summarized in Part II of the factum.
15. Where the respondent consents to the admission of fresh evidence on the appeal this evidence may be included in the appeal book or filed separately and reference may be made to the evidence in Part II of the factum. No notice of motion is required, provided that the material is clearly identified as fresh evidence and the respondent has consented to its admission. Where the respondent opposes the admission of the fresh evidence then counsel must prepare a notice of motion returnable on the date of the appeal. The evidence itself should be filed with the notice of motion, but in a sealed envelope. There must be sufficient copies for the members of the court.
16. Where the facts are complicated and somewhat lengthy counsel may wish to include a paragraph containing an overview of the facts. In most sentence appeals that paragraph should not be required since the Criminal Appeal Rules require that this Part of the factum contain a brief summary of the facts.

FORM E

NOTICE OF APPEAL (PART XX.1)
COURT OF APPEAL FOR ONTARIO
IN THE MATTER OF A. B. (accused)
NOTICE OF APPEAL
PARTICULARS OF DISPOSITION OR PLACEMENT DECISION
1. Place of disposition or placement decision
2. Name of judge or chairperson of Review Board
3. Offence(s) for which disposition or placement decision made
4. Section(s) of Criminal Code for offences for which disposition or placement decision made
5. Disposition or placement decision appealed from
6. Length of hearing
7. Date of disposition or placement decision1
8. If accused in custody or detention, place of incarceration or detention
9. The verdict at trial2
TAKE NOTICE that the accused applies for an extension of time within which to launch the within appeal upon the following grounds: (here state reasons for delay)
TAKE NOTICE that [identify party appealing] appeals against the disposition [or placement decision] upon grounds involving a question of law alone or fact alone or mixed law and fact.
The grounds of appeal are:
The relief sought is:
The appellant’s address for service is:
Dated this day of 19
(Name, address and telephone number of appellant’s solicitor or (where none) the appellant)
To: the Registrar
Numbered notes set out below refer to corresponding numbers on notice
Note 1. This notice of appeal must be served within fifteen days after the day on which the parties are provided with a copy of the disposition or placement decision and the reasons for it, by delivering a copy of the notice of appeal to the person in charge of the hospital or other institution in which the accused is in custody or by delivering to the office of the Registrar or by mailing to the Registrar by registered mail three copies of the notice of appeal, and, in addition, in an appeal by the Attorney General or by a party other than the accused, by personal service on the accused. If the accused is the appellant and is not represented by a solicitor then he or she must indicate in the space provided the reasons for failing to serve the notice of appeal within the time limit.
Note 2. That is, whether the verdict was that the accused was unfit to stand trial or not criminally responsible on account of mental disorder.
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