The Court of Queen’s Bench of New Brunswick

Summary Conviction Appeal Rules

1 These rules apply to any appeal under Part XXIV of the Criminal Code commence on or after May 1, 1980 so far as not inconsistent with any provision of the Code.

• 2 (1) The interpretation provisions of the Code shall, so far as relevant, be taken to apply to these rules.

• (2) (a) Appeal means an appeal from a Summary Conviction Court pursuant to Part XXIV of the Code;

  • (b) Appeal Court means the Court of Queen’s Bench of New Brunswick;

  • (c) Judge means a judge of the Appeal Court;

  • (d) Clerk means the Clerk of the Court of Queen’s Bench for the Judicial District where the trial was held;

  • (e) Code means the Criminal Code of Canada.

• 3 (1) Every Notice of Appeal under section 748 of the Code, shall be dated and signed by the Appellant, his counsel or agent, and shall be directed to the Clerk of the Appeal Court and shall set forth —

  • (a) the Summary Conviction Court that made the conviction or order appealed from or imposed the sentence appealed against;

  • (b) with reasonable certainty, the conviction or order appealed from or the sentence appealed against, including dates;

  • (c) whether the Appellant is imprisoned or at liberty and, if in gaol, the place of confinement;

  • (d) whether the Appellant desires to be present in person or by counsel on the hearing before the Appeal Court;

  • (e) the nature of the order the Appellant intends to seek with the grounds relied upon for relief; and

  • (f) the Appellant’s address for service.

• (2) Where the Appellant is the defendant, the Notice of Appeal may be in Form 1 in the Appendix and where the Appellant is the prosecutor, the Notice of Appeal may be in Form 2 in the Appendix.

• 4 (1) The Appellant shall within 30 days after the conviction or order was made or the sentence was imposed, whichever is the later date —

  • (a) where the Appellant is the prosecutor, serve the Notice of Appeal on the defendant or on such other person or in such manner as a Judge directs;

  • (b) where the Appellant is the defendant, serve the Notice of Appeal on the prosecutor; and

  • (c) file the Notice of Appeal with the Clerk.

• (2) Any Notice of Appeal may be served on the prosecutor by sending the same by prepaid registered letter addressed to the Attorney General of New Brunswick, P.O. Box 6000, Fredericton, N.B.

• 5 (1) The Appellant shall file in the office of the Clerk proof of service of the Notice of Appeal not later than seven days after the last day for service of the Notice of Appeal.

• (2) A Judge may, before or after the expiration of the periods fixed in subsection 4(1) or 5(1), extend the time within which service and filing may be effected.

• 6 (1) The Clerk of the Appeal Court shall, upon the filing of a Notice of Appeal, deliver or send by prepaid registered mail a copy thereof to the Summary Conviction Court.

• (2) The Summary Conviction Court shall, within 10 days after receipt of the Notice of Appeal, transmit to the Clerk of the Appeal Court the material referred to in subsection 754(1) of the Code.

• 7 (1) Where the evidence upon a trial before a Summary Conviction Court was taken by a stenographer duly sworn or by a sound recording apparatus, unless a Judge of the Appeal Court otherwise orders, the Summary Conviction Court shall deliver to the Clerk for the use of the Appeal Court, a transcript of the evidence taken at the Summary Conviction Court, and the reasons for judgment and/or sentence, if any.

• (2) The Summary Conviction Court shall deliver to the Appellant and Respondent, upon request, and upon payment of the appropriate fees, a copy of the transcript.

8 Where the evidence upon a trial before a Summary Conviction Court was not taken by a stenographer duly sworn, or by a sound recording apparatus, the trial judge’s verified notes of the evidence and proceedings at trial are prima facie proof of the evidence and proceedings at the trial.

9 A certificate furnished by a stenographer duly sworn as to the correctness of a transcript of evidence is prima facie proof of the accuracy thereof.

• 10 (1) Upon receipt of the material required to be transmitted by the Summary Conviction Court pursuant to subsection 754(1) of the Code and a transcript of the evidence or the trial judge’s verified notes of the evidence and proceedings, unless dispensed with by order of the Appeal Court and any application under subsection 755(4) of the Code has been disposed of, the Clerk shall, within 10 days, enter the case on a list of appeals to be heard, whereupon directions may be given for hearing of the appeal.

• (2) The Clerk, subject to the directions of the Judge, shall notify by mail with not less than 30 clear days notice, the parties and/or their counsel of the date, time and place that the appeal will be heard.

• 11 (1) An application for trial de novo pursuant to subsection 755(4) of the Code shall be made by Notice of Motion to a Judge with supporting material within 10 days of the receipt of the transcript or a certificate from the reporter that the same cannot be provided, or at such other time as a Judge may otherwise order. Service of a copy of the Notice of Motion and supporting material shall be on the opposite party not later than 10 days prior to the return date thereof and proof of such service shall be filed with the Clerk not less than two days prior to the return date.

• (2) The Clerk, following the determination of the Motion shall set the appeal down for hearing in the same manner as provided in Rule 10.

• 12 (1) Any party may present argument in writing if he so desires by filing it with the Clerk of the Appeal Court seven days prior to the day fixed for the hearing.

• (2) Notwithstanding subsection (1) the Appeal Court may order that written arguments be filed in which case the Appellant shall file with the Clerk such memorandum and serve a copy of the memorandum on the Respondent not less than 14 days prior to the day fixed for the hearing. The Respondent shall then file with the Clerk a similar statement and serve a copy on the Appellant not less than four days prior to the day fixed for the hearing.

• 13 (1) If the Appellant does not diligently pursue his appeal, the Respondent may apply to the Appeal Court for an order dismissing the Appeal for want of prosecution and upon such application the Appeal Court may make such order as it deems just.

• (2) Where an Appellant desires to abandon his appeal, he shall serve on the opposite party a Notice of Abandonment and file such Notice with the Clerk in advance of the date set for the hearing of the appeal.

• (3) If an Appellant —

  • (a) fails to appear personally or through counsel on the day fixed for the hearing; and

  • (b) fails to file a written argument on appeal, the Appeal Court may, in its discretion —

    • (i) dismiss the appeal for want of prosecution, or

    • (ii) proceed with the appeal in the absence of the Appellant.

• (4) If a Respondent —

  • (a) fails to appear personally or through counsel, on the day fixed for the hearing; and

  • (b) fails to file a written argument on appeal, the Appeal Court shall proceed with the appeal in the absence of the Respondent.

14 Subject to the provisions of section 754 of the Code, the Summary Conviction Court shall retain all documents, exhibits or other things connected with the trial of any person for 40 days after the completion of the trial, unless in the meantime an order has been made by a Judge of the Appeal Court respecting the custody and control of same.

15 Immediately after the disposition of an appeal, the Clerk shall cause to be delivered to, or sent by registered prepaid mail to the Summary Conviction Court, the results of the appeal, including any written reasons or endorsements made by the Judge.

• 16 (1) Any time limited by these rules may be extended or abridged by a Judge, before or after the expiration of the time prescribed provided, however, that the time prescribed under Rule 11 for the bringing of an application under subsection 755(4) of the Code shall not be extended.

• (2) Notice of an application to extend or abridge time, shall, unless made on consent or unless otherwise ordered by a Judge, be given to the opposite party.

• (3) Non-compliance with these rules does not automatically render any step in an appeal void, but it may be amended or set aside as irregular or otherwise dealt with, as may seem just in the circumstances.

17 Any appeal or right of appeal existing prior to the coming into force of these rules shall be governed by these rules and any extensions or abridgements of time or procedural changes may be made by the Appeal Court Judge to facilitate the hearing of the appeal.

18 In any matter of procedure or practice arising on an appeal not provided for by the Criminal Code or by these rules, the Rules of Court under the Judicature Act shall mutatis mutandis apply.

APPENDIX

FORM 1In the Court of Queen’s Bench of New Brunswick

BETWEEN:

Appellant

— and —

Respondent

NOTICE OF APPEAL

(where defendant is appellant)

• A 

  Particulars of conviction, sentence or order, as the case may be.
  •  1 

    Place of conviction, sentence or order.
  •  2 

    Name of Judge.
  •  3 

    Statute and section thereof under which defendant found guilty or liable to penalty, or other sanction.
  •  4 

    Plea at trial.
  •  5 

    Date of conviction, sentence or order.
  •  6 

    If defendant in custody, place of incarceration.
• B 

  Grounds
  • The Appellant hereby
    •  7 

      Appeals against the conviction, sentence or order (strike out inapplicable relief).
    •  8 

      The grounds of appeal are: (add extra pages as required).
    •  9 

      The relief sought is: (add extra pages as required).
    • 10 

      The appellant does/does not wish to appear personally or by counsel and will present his argument on appeal orally/in writing (strike out inapplicable parts).
• C 

  The appellant’s and his counsel’s, where applicable, address for service is/are: (fill in carefully).

DATED at this day of 19

Signature of Appellant or Counsel

TO: The Clerk of the Appeal Court

FORM 2In the Court of Queen’s Bench of New Brunswick

BETWEEN:

HER MAJESTY, THE QUEEN, OR INFORMANT

Appellant

— and —

Respondent

NOTICE OF APPEAL

(where appeal is from an order of dismissal)

TAKE NOTICE that the Attorney General of appeals from an order dismissing the information of against the respondent made by His Honour Judge at in New Brunswick, on the day of , 19.

The information that was dismissed alleged that the respondent: (provide particulars)

(where the Appeal is from sentence)

TAKE NOTICE that the Attorney General of appeals the sentence imposed upon the respondent following a conviction(s) made by His Honour Judge at in New Brunswick, on the day of , 19.

The offence of which the respondent was convicted was:

and the sentence imposed by the summary conviction court was:

and was imposed on the day of , 19.

(where an appeal is from an order of dismissal or from sentence)

The following are the grounds of appeal:

The address for the service of the Attorney General is:

DATED at the day of , 19.

Signature of the Attorney General or his duly authorized agent

TO: The Clerk of the Appeal Court

APPROVED AS RULES OF THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK.

DATED the 13th day of February, 1980

ADRIEN J. CORMIER, Chief Justice

DAVID M. DICKSON, Judge

J. PAUL BARRY, Judge

CLAUDIUS I. L. LÉGER, Judge

RONALD C. STEVENSON, Judge

STUART G. STRATTON, Judge

BERNARD A. JEAN, Judge

H. EDWARD MONTGOMERY, Judge

RICHARD L. MILLER, Judge

WILLIAM L. M. CREAGHAN, Judge

EARL T. CAUGHEY, Judge

CHAIKER ABBIS, Judge

WENDELL W. MELDRUM, Judge

ROBERT J. HIGGINS, Judge

JEAN-CLAUDE ANGERS, Judge