• 839 In these Rules, unless the context otherwise requires:

• (1) Appellant means any person entitled to appeal to the Court under Part XVIII of the Code, or Section 771 of the Code, or under The Summary Convictions Act of Alberta, and includes the Attorney-General.

• (2) Appellate judge means a judge of the Court of Appeal of Alberta, and includes an ex officio judge of that Court.

• (3) Attorney-General means the Attorney-General as defined in s. 2 of the Code and includes counsel instructed by him for the purpose of an appeal.

• (4) Code means the Criminal Code.

• (5) Court means the Court of Appeal of Alberta.

• (6) Prisoner appeal means an appeal by a person who at the time the notice of appeal is given, is in custody and not represented by counsel.

• (7) Prosecutor means a prosecutor as defined in s. 2 of the Code.

• (8) Registrar means a registrar of the Court, or it there is no registrar appointed, means the clerk of the Court of the Judicial District of Calgary in the case of trial dispositions made in the Southern Judicial Districts and the clerk of the Court of the Judicial District of Edmonton in the case trial dispositions made elsewhere in Alberta, and includes a deputy, assistant or acting registrar.

• (9) Respondent means the Attorney-General in the case of a person who appeals against a conviction or sentence, or against a finding or verdict that he is unfit to stand trial, or from a finding of “not guilty” by reason of insanity; and in the case of the Attorney-General who appeals against sentence or acquittal, or a finding of “not guilty” by reason of insanity, or a finding or verdict that the Accused is unfit to stand trial, means the person accused.

• (10) Sentence appeal means an appeal where only the question of sentence is involved.

• (11) Southern Judicial Districts means the Judicial Districts of Macleod, Lethbridge, Calgary, Medicine Hat, Hanna, Drumheller and Red Deer.

• (12) Trial disposition means a conviction, a sentence, an acquittal, or an order from which there is an appeal.

• (13) Trial judge means a judge who presided at the trial, and includes a judge of the Provincial Court of Alberta, a judge of the Trial Division of the Supreme Court of Alberta.

• (14) Warden means the person in charge of any custodial institution, including a remand centre, a gaol, a penitentiary, or a mental hospital.

• 840 (1) These Rules shall apply to appeals to the Court under:

  • (i) Part XVIII of the Code, or Sec. 771 of the Code, or

  • (ii) The Summary Convictions Act of Alberta.

• (2) Numbers preceded by the letter “s” are references to sections of the Code.

• (3) In all matters not provided for by these Rules, the Rules of Court respecting civil appeals shall apply, mutatis mutandis, save that there shall be no cross-appeal, and Rule 509 shall not apply.

• (4) Non-compliance with the Rules shall not render any proceedings void, but the same may be amended, set aside, or otherwise dealt with as may be just by an Appellate judge or the Court.

(5) (i) Any time prescribed by these Rules within which an appeal is to be taken may be extended by an Appellate judge or the Court before or after the expiration thereof, and any other time may similarly be extended or shortened.

• (ii) Two clear days’ notice in writing of an application to extend or shorten time shall be given to the opposite party unless such application is made on consent, or unless otherwise ordered by an Appellate judge.

• (iii) An appeal to the Court may be taken from the dismissal by an Appellate judge of an application to extend or shorten time by filing a notice in writing with the registrar within seven (7) days of such dismissal.

• (6) An appeal may be dismissed if the appellant fails to appear when the case is called for hearing, but such order dismissing an appeal may for special reasons be vacated on application to the Court.

• (6.1) Subject to subrule (6.2) and notwithstanding any other Rule to the contrary, all conviction appeals and appeals by the Attorney General pursuant to section 676 of the Code shall be deemed to have been abandoned where four calendar months have passed since the Appeal Books have been readied and the appellant has failed to file and serve the appellant’s factum on the respondent.

• (6.2) The Court or a Judge thereof may, on motion by the appellant or, in the case of a prisoner appeal, on the motion of the Court or a Judge thereof, and on proper grounds being shown, continue any appeal referred to in subrule (6.1) by order before or after the expiration of the time fixed by that subrule and on such terms as may be just.

• (7) If the appellant or respondent obtains leave of the Court to call further evidence upon the hearing of the appeal, the attendance of any witness or the production of any document may be obtained in the same way as that provided for by the Rules of the Supreme Court in civil matters, and all the provisions of such Rules so far as they are applicable, shall apply to the production of evidence upon an appeal.

(8) (i) The registrar shall, following the pronouncement of judgment by the Court in every criminal appeal, promptly enter a formal judgment.

• (ii) Any clerical errors or omissions may be corrected by a single member of the Court pronouncing the judgment.

• 841 An appeal or an application for leave to appeal under the Code shall be made by filing and serving a notice of appeal in the manner and within the time as hereinafter directed.

• 842 (1) An Appeal under The Summary Convictions Act of Alberta shall be made by filing a certificate granted under the Act and by filing and serving a notice of appeal in the manner and within such time as is hereafter directed.

• (2) Rule 850 shall apply, mutatis mutandis, to an application for leave under The Summary Convictions Act of Alberta.

• 843 (1) A notice of appeal from conviction, or conviction and sentence, or sentence only, shall be filed and served within thirty (30) days from the date of sentence.

• (2) A notice of appeal from acquittal shall be filed and served within thirty (30) days from the date of acquittal.

• (3) A notice of appeal from a finding of “not guilty” by reason of insanity by an accused person pursuant to s. 603(2)(b) shall be filed and served within thirty (30) days from the date of such finding.

• (4) A notice of appeal from a finding or verdict that an accused person is unfit to stand trial by reason of insanity by either such accused person or the Attorney-General, pursuant to s. 603(2)(a) or s. 605(3) shall be filed and served within thirty (30) days from such finding or verdict.

• 844 (1) The filing and serving of a notice of appeal shall be effected:

  • (i) in a prisoner appeal, by serving three (3) copies of the notice of appeal on the warden or the designate of the warden of the institution in which the appellant is in custody. Such officer shall endorse on the copies the date he received them, and shall forthwith return one (1) copy to the appellant, and forthwith forward one (1) copy to the registrar, and shall retain one (1) copy;

  • (ii) in any other appeal by a convicted person, by filing in the office of the registrar or by mailing to him by registered mail three (3) copies of a notice of appeal;

  • (iii) in an appeal by the Attorney-General, by filing two (2) copies of the notice of appeal with the registrar and by personal service on the person in respect of whose trial disposition the appeal is brought, unless otherwise ordered by an Appellate judge, provided that where substitutional service is ordered, no appeal shall be argued without leave of the Court, and on such application for leave, the Court may give further directions as to service.

• (2) Upon receipt of a notice of appeal other than an appeal by the Attorney-General or prosecutor, the registrar shall forthwith forward a copy to the Attorney-General or his counsel at trial, or the prosecutor or his counsel at trial.

• (3) In cases tried before a Provincial judge, the registrar shall immediately forward a copy of the notice of appeal to the judge.

• (4) In all cases, the registrar shall immediately forward a copy to the clerk of the Court in which the trial took place.

• 845 (1) In appeals where the appellant is not represented by counsel, a notice of appeal and application for leave to appeal shall be in Form “A” or to like effect.

• (2) In all other appeals and applications for leave to appeal, the notice of appeal shall be in Form “B” or to like effect.

• (3) Where an appeal or an application for leave to appeal is commenced by an appellant not represented by counsel, and the appellant subsequently retains counsel, the latter shall immediately notify the registrar and the respondent. Thereafter, all relevant Rules relating to appeals which are not appeals by persons not represented by counsel shall apply.

• 846 Every notice of appeal and every application for leave to appeal, shall set out the grounds for appeal or application, and shall be signed by the appellant or counsel.

• 847 (1) No time or place for the hearing shall be stated in the notice of appeal. The registrar shall forthwith after receipt of the notice, other than a notice of an application to an Appellate judge for leave to appeal, enter the case on the lists of appeal for the next ensuing sittings of the Court, and all necessary directions as to the hearing of the appeal or application may be given by the Court or any judge thereof.

• (2) In appeals by the Attorney-General, the Attorney-General shall take all reasonable steps to notify a respondent of the time and place for the hearing of the appeal.

• 848 Unless otherwise ordered by the Court or a judge thereof, all appeals and applications to the Court or a judge thereof for leave to appeal from any trial disposition made in the Southern Judicial Districts shall be heard at Calgary, and all other appeals and applications shall be heard at Edmonton.

• 849 (1) Applications for leave to appeal may be made to the Court or to an Appellate judge.

• (2) An application for leave to appeal to the Court shall be made by the filing of a notice of appeal, pursuant to these Rules, and no further notice is required.

• (3) Where the Court grants leave to appeal, it may at once determine the appeal on its merits or it may direct that the appeal be heard at a later time.

• (4) An application for leave to appeal to an Appellate judge shall be made by filing a notice of appeal pursuant to these Rules, and by filing with the registrar contemporaneously, or thereafter, a notice of motion. Such notice shall be served on the respondent not less than two (2) clear days before the return of the motion, unless otherwise ordered.

• (5) If an Appellate judge refuses leave to appeal against a conviction in respect of an application brought pursuant to s. 603(1)(a)(ii), the applicant may, by filing a notice in writing with the registrar within seven (7) days of such refusal, have the application for leave to appeal determined by the Court.

• (6) If an Appellate judge refuses to leave from sentence in respect of an application brought pursuant to s. 603(1)(b), such determination is final, and no appeal from such order lies.

• 850 (1) An application to a trial judge for a certificate under s. 603(1)(a)(ii) shall be made within thirty (30) days from the date of sentence, and may be made ex parte, or if the trial judge requires, on at least two (2) clear days’ notice to the Attorney-General.

• (2) Where a trial judge requires notice of the application:

  • (i) the notice may be returnable before or after the expiration of the thirty (30) days mentioned above;

  • (ii) a copy of the notice shall be mailed to or filed with the registrar;

  • (iii) if the certificate is granted, the notice of appeal shall be mailed or filed as provided in s. 844(1) within thirty (30) days from the date of sentence, or within two (2) clear days after the certificate is granted, whichever is the later.

• 851 (1) In an appeal against sentence, where the appellant is represented by counsel, unless otherwise ordered by the Court or a judge thereof, there shall be filed by the appellant with the registrar six (6) copies of a group of documents entitled “Sentence Material”, and a further copy shall forthwith be served upon the respondent.

• (2) The Sentence Material shall be filed with the registrar at least five (5) days before the opening of the Court.

• (3) The Sentence Material shall include the following:

  • (i) the Information or Indictment and sentence;

  • (ii) a Statement of Facts as related to the trial judge;

  • (iii) any pre-sentence or post-sentence reports;

  • (iv) a transcript of the Reasons for Judgment and for sentence given by the trial judge; the criminal record, if any, of the convicted person, as disclosed to the trial judge.

• (4) Where an appeal book has been filed, the Sentence Material need not include any material already contained in the Appeal Book.

• (5) Six (6) copies of written material to be used in support of a respondent’s argument shall be filed with the registrar three (3) days before the opening of the Court, unless the Court otherwise orders, and a further copy shall be forthwith served upon the appellant.

• 852 (1) In an appeal against sentence, where the appellant is not represented by counsel, he may present his argument orally or in writing, but in order to do so orally, he must signify in his notice of appeal his desire to be present, if he is in custody.

• (2) Any argument in writing shall be filed with the registrar prior to the day fixed for the hearing.

• 853 (1) In an appeal against sentence by a convicted person, the Attorney-General, if he intends upon the hearing of the appeal to contend that the sentence should be increased or varied, shall, not less than three (3) days before the commencement of the sittings of the Court at which the appeal comes to be heard, give notice of such intention in writing to the appellant or his counsel.

• (2) In any appeal against sentence by either a convicted person or the Attorney-General, the Court of its own motion may treat the whole matter of sentence as open, and on an appeal by a convicted person, may increase or vary the sentence, and on an appeal by the Attorney-General, decrease or vary the sentence, provided that notice that such increase or variation is to be considered, is given by the Court so that the convicted person or the Attorney-General may be heard on such disposition.

• 854 (1) Except in sentence appeals, or unless otherwise ordered, the appellant shall:

  • (i) file six (6) copies of an appeal book with the registrar;

  • (ii) deliver one (1) copy of the appeal book to the respondent.

• (2) The appeal book shall be furnished to the appellant upon payment of the fees from time to time authorized by the tariff of fees payable to the office of the court reporters.

• (3) Unless otherwise ordered by the Court or a judge thereof, the Appeal Book shall contain:

  • (i) the Information or Indictment;

  • (ii) the transcript of the evidence, including exhibits;

  • (iii) Counsels’ addresses;

  • (iv) charge to the jury;

  • (v) Reasons for Judgment;

  • (vi) formal certificate of conviction (or acquittal);

  • (vii) Notice of appeal (or notice of application for leave to appeal).

• 855 [Repealed, SI/2008-80, s. 1]

• 856 The Provincial judge before whom a trial took place, or the clerk of the Court shall, upon request, forward to the Attorney-General and to counsel who acted for the Attorney-General at the trial, certified copies of the documents, exhibits and things connected with the proceedings which are in his custody and control, and which are required for the purposes of an appeal.

• 857 (1) Where an appeal is taken or an application for leave to appeal is made, the trial judge shall, at the request of the Court or a judge thereof, furnish to the registrar a report on the case or on any matter relating to the case which is specified in the request.

• (2) Forthwith after the registrar receives the report, he shall mail a copy of it to the appellant and to the respondent, or to their counsel.

• 858 (1) Subject to the other subsections of this Rule, all documents, exhibits and things connected with a trial shall be retained by the Provincial judge or by the clerk of the Court for forty (40) days after sentence or acquittal, as the case may be.

• (2) At any time after a trial, the trial judge or an Appellate judge may make such order as to the custody or conditional release of any document, exhibit or thing as the special circumstances of the case may require.

• (3) Upon the filing of written consents by the accused or his counsel, and by the Attorney-General or his counsel, the Provincial judge or the clerk of the Court shall deliver any document, exhibit or thing in accordance with such consents.

• (4) Upon receipt of a copy of a notice of appeal, the Provincial judge or the clerk of the Court shall forward to the registrar all documents, exhibits and things connected with the proceedings at the trial, other than such as may already have been released pursuant to subsections (2) and (3) hereof.

• 859 (1) A transcript of the evidence of proceedings taken in shorthand at a trial and certified by the official court reporter who made or extended the transcript shall be prima facie proof of such evidence and proceedings.

• (2) Where the evidence and proceedings are not taken by a court reporter, but by a sound-recording apparatus, as authorized under Provincial legislation, a transcript of such recording, certified by a court reporter, shall be prima facie proof of such evidence and proceedings.

• (3) Where the evidence and proceedings are not taken by a court reporter, and are not taken by a sound-recording apparatus, as authorized under Provincial legislation, then depositions taken in accordance with s. 468 shall be prima facie proof of such evidence and proceedings.

• (4) In this Rule, official court reporter means

  • (i) a person appointed as an official court reporter by order of the Attorney General; or

  • (ii) a certified shorthand reporter under the Alberta Shorthand Reporters Regulation (AR 197/96).

• 860 An order for the restitution of property under ss. 653, 654 or 655 shall provide for securing the safe custody of the property referred to in the order, for the period during which its operation is suspended by virtue of s. 616.

• 860A (1) All applications for release from custody pending the determination of an appeal to the Court shall be made to an Appellate judge. No application for release from custody pending the determination of an appeal shall be entertained unless the applicant has filed with the registrar a notice of appeal or an application for leave to appeal.

• (2) No application for release from custody pending the determination of an appeal from sentence only shall be granted unless the appellant has been granted leave to appeal.

• (3) An application for leave to appeal may be combined and heard with an application for release from custody pending appeal.

• (4) No application for release pending the determination of an appeal or motion for leave to appeal to the Supreme Court of Canada shall be entertained unless the applicant has filed and served his notice of appeal, or, where leave is required, his application for leave to appeal.

• 860B (1) Where an applicant applies for release from custody pending determination of appeal, he shall give written notice of such application to the prosecutor. Such notice shall be two (2) clear days’ notice, unless both parties attend upon an Appellate judge or the judge otherwise orders.

• (2) The application shall be supported:

  • A by an affidavit stating:

    • (i) his places of abode in the three years preceding his conviction, and where he proposes to reside if released;

    • (ii) his employment, if any, prior to conviction, and whether he expects to be employed if released;

    • (iii) his criminal record, if any, including convictions outside Canada;

    • (iv) whether criminal charges are, at the time of the application, pending against him, either in Canada or elsewhere.

  • B by his undertaking to surrender himself into custody in accordance with the terms of any order granted.

• (3) An Appellate Court judge may dispense with the filing of the affidavit referred to above, and may act upon a statement of facts conveyed to him by counsel for the applicant and for the Attorney-General, which statements of fact the judge may require each counsel to put in writing and file with the registrar.

• (4) A judge of the Court which orders a new trial may forthwith entertain an application for interim release pending the new trial.

• 860C (1) An appellant who desires to abandon an appeal may do so at any time before the hearing of the appeal commences by completing a Notice of Abandonment in Form “C”, or to like effect, and by filing or sending the same to the registrar. Form “C” shall be signed by the appellant, or by his solicitor of record in the appeal. In the former case, the signature of the appellant shall be verified by affidavit or witnessed by a solicitor or by an officer of the institution in which the appellant is confined.

• (2) Notwithstanding subsection (1) of this Rule, the appellant may be given leave by the Court to abandon an appeal after the commencement of argument.

• (3) An appeal which is abandoned shall be as if no appeal had been taken.

• 860D A sufficient number of copies of these Rules shall be prepared by the registrar at Calgary (Edmonton) and sent to every keeper of a Provincial Gaol in Alberta, and to the wardens of the Penitentiary at Prince Albert, and the Penitentiary at Drumheller, and such other penal institutions in Alberta as may be operated by the Government of Canada, and the registrar shall also send to the said keepers and wardens a copy of sections 603, 607, 610 and 612 of the Criminal Code for any convicted person in his custody who requests the same.