Criminal Appeal Rules (SI/93-169)

Regulations are current to 2017-10-13

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.

 
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