Criminal Appeal Rules (SI/93-169)

Listing Appeals

Notice of date of appeal

• 21 (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

• 22 (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

• 23 (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

• 24 (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

• 25 (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

26 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

• 27 (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

• 28 (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

29 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

• 30 (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

31 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

• 32 (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

33 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.