Criminal Appeal Rules (SI/93-169)

Regulations are current to 2017-11-20

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.

 
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