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Criminal Appeal Rules (SI/93-169)

Regulations are current to 2022-06-20

Dismissal for Failure to Comply with Rule 8

Service of notice to cure default

  •  (1) Where the appellant fails to comply with any of the provisions of rule 8, 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 default is cured within ten days after service of the notice.

Service of notice that appeal to be dismissed as abandoned

  • (2) Where the appellant does not cure the default within ten days after service of the notice, or within such longer period as a judge allows, the Registrar shall serve notice on the appellant and counsel for the appellant of the date on which the appeal is to be placed before the Court of Appeal to be dealt with in accordance with subrule (1).

Appellant to be served with copy of order dismissing appeal

  • (3) The Registrar shall serve the appellant with a copy of an order dismissing the appeal.

    Manner of service

  • (4) 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.

Processing Appeals

  •  (1) Upon receipt of a notice of appeal, the Registrar shall forthwith transmit a copy of it to the registrar of the Ontario Court (General Division) or the clerk of the Ontario Court (Provincial Division), as the case may be, for the county or district where the proceedings were held and, except where the appellant is the Attorney General, to the Attorney General.

  • (2) Upon receipt of a notice of appeal in Form A [inmate appeal], the registrar of the Ontario Court (General Division) or the clerk of the Ontario Court (Provincial Division), as the case may be, unless it is otherwise ordered by a judge, shall transmit forthwith to the Registrar all documents and exhibits capable of reproduction which were before the trial court.

Original Papers and Exhibits

Appellant to requisition original papers and exhibits

  •  (1) Except in the case of an inmate appeal, the appellant shall by requisition within fourteen days after the filing of the notice of appeal cause to be forwarded to the Registrar copies of the conviction, order, indictment or information, pre-sentence report, criminal record and any other papers or documents relating to the appeal together with all exhibits capable of reproduction from the court from which the appeal is taken.

    Form of requisition

  • (2) The appellant shall requisition the documents referred to in subrule (1) by filing a requisition in Form 4E of the Rules of Civil Procedure with the registrar of the Ontario Court (General Division) or the clerk of the Ontario Court (Provincial Division) as the case may be.

    Copy of requisition to be filed with Registrar

  • (3) The appellant shall file a copy of the requisition in Form 4E with the Registrar within fifteen days after the filing of the notice of appeal.

Processing of Appeal where Legal Aid Refused

  •  (1) Where an appellant in custody who has appealed through a solicitor has received notice that legal aid for the appeal has been refused and within fifteen days he or she files with the Registrar notice of intention to proceed with the appeal as an inmate appeal, rules 8 and 11 cease to apply to the appellant.

  • (2) The notice of intention shall state whether the appellant wishes to present the appeal in person or in writing.

  • (3) Thereafter the appeal shall be processed as an inmate appeal, and unless a transcript of evidence has been ordered, a report shall be obtained from the trial judge under rule 13.

  • (4) The appeal book shall include a copy of the appellant’s notice of intention and of the notice of appeal filed by the appellant’s former solicitor.

Trial Judge’s Report

  •  (1) Upon the request of the Court of Appeal made through the Registrar, the trial judge shall promptly furnish a report on the case under appeal summarizing the material facts and in particular the facts relevant to those matters raised by the notice of appeal and on any matter relating to the proceeding that is specified in the request.

  • (2) A trial judge furnishing a report under this rule shall concurrently furnish a transcript of any reasons delivered in open court for conviction and sentence, and in the case of a trial by judge and jury, a transcript of the trial judge’s charge to the jury, the objections to the charge and related rulings, if any, and any questions from the jury and the answers to them.

Appeal Books

Contents of Appeal Book

  •  (1) Except in an inmate appeal, the appeal book shall contain, in consecutively numbered pages arranged in the following order, a copy of,

    • (a) a table of contents describing each document, including each exhibit, by its nature and date, and, in the case of an exhibit, identified by exhibit number or letter;

    • (b) the notice of appeal and any supplementary notice of appeal;

    • (c) the order granting the leave to appeal, if any, and any order or direction made with reference to the appeal;

    • (d) the information or indictment, including all endorsements;

    • (e) the formal order or decision appealed from, if any, as signed and entered;

    • (f) the reasons for judgment, if not included in the transcript of the trial or hearing, together with a further typed or printed copy if the reasons are handwritten;

    • (g) any order for release from custody pending appeal and any other order suspending the operation of the sentence;

    • (h) all documentary exhibits filed at the trial arranged in order by date or, where there are documents having common characteristics, arranged in separate groups in order by date;

    • (i) all maps, plans, photographs, drawings and charts that were before the trial judge and are capable of reproduction;

    • (j) the agreed statement of facts, if any;

    • (k) where there is an appeal as to sentence, the pre-sentence report, the criminal record of the convicted person and any exhibits filed on the sentencing proceedings;

    • (l) any notice of constitutional question served in accordance with section 109 of the Courts of Justice Act, and proof of service of the notice upon the Attorney General of Ontario and the Attorney General of Canada;

    • (m) any agreement made by the parties under subrule 8(18);

    • (n) the certificate referred to in subrule 18(2); and

    • (o) a certificate in Form 61H of the Rules of Civil Procedure signed by the appellant’s solicitor, or on the solicitor’s behalf by someone specifically authorized to do so, stating that the contents of the appeal book are complete and legible.

    Material may be omitted from appeal book

  • (2) Notwithstanding subrule (1), with the consent of the respondent or as directed by a judge, some or all of the material referred to in paragraphs (1)(h) and (i) may be omitted from the appeal book.

    Form of appeal book

  • (3) The appeal book, other than an appeal book prepared by the Attorney General, shall be bound front and back in buff cover stock and the appeal book prepared by the Attorney General shall be bound front and back in grey cover stock.

  • (4) Notwithstanding subrule (1), the parts of the appeal book may be divided by numbered tabs if the pages within the tabs are consecutively numbered.

  • (5) The Registrar may refuse to accept an appeal book that does not comply with these rules or is not legible, and in that case the appeal book shall not be filed without a direction from a judge.

Appeal Book for Unrepresented Appellant

 Where the appellant is not represented by counsel, the Registrar may require the Attorney General to prepare an appeal book.

Factums

Heading of factum

  •  (1) Except in an inmate appeal, all parties to an appeal and persons who have been granted the right to be heard shall deliver a factum, to be entitled and described on its cover as “Appellant’s Factum”, “Respondent’s Factum” or as the case may be.

Factum to be signed and dated

  • (2) A factum shall be signed by counsel or on counsel’s behalf by someone specifically authorized to do so, or by the appellant or respondent if he or she has no counsel, and the signature shall be followed by the typed name of counsel, if any, and the date.

Contents of appellant’s factum

  • (3) Except in an appeal from sentence only, the appellant’s factum shall consist of,

    • (a) Part I, with the caption “Statement of the Case”, and containing a statement identifying the appellant and the court appealed from, the nature of the charge or charges, the result in that court, and whether the appeal is from conviction, conviction and sentence, acquittal or other disposition;

    • (b) Part II, with the caption “Summary of the Facts”, and containing a concise summary of the facts relevant to the issues on the appeal, with such reference to the transcript of evidence by page and line as is necessary;

    • (c) Part III, with the caption “Issues and Law”, and containing a statement of each issue raised, immediately followed by a concise statement of the law and authorities relating to that issue;

    • (d) Part IV, with the caption “Order Requested”, and containing a statement of the order that the court will be asked to make;

    • (e) Schedule A, with the caption “Authorities to be Cited”, and containing a list of the authorities referred to, with citations, in the order in which they appear in Part III or in alphabetical order; and

    • (f) Schedule B, with the caption “Relevant Legislative Provisions” setting out the text of all relevant statutes except any provisions from the Code and the Young Offenders Act (Canada).

Contents of respondent’s factum

  • (4) The respondent’s factum shall consist of,

    • (a) Part I, with the caption “Respondent’s Statement as to Facts”, containing a statement of the facts in Part II of the appellant’s factum that the respondent accepts as correct or substantially correct and those facts with which the respondent disagrees and a concise summary of any additional facts relied on, with such reference to the transcript of evidence by page and line as is necessary;

    • (b) Part II, with the caption “Response to Appellant’s Issues”, and containing the position of the respondent with respect to each issue raised by the appellant, immediately followed by a concise statement of the law and the authorities relating to that issue;

    • (c) Part III, with the caption “Additional Issues”, and containing a statement of any additional issues raised by the respondent, immediately followed by a concise statement of the law and the authorities relating to that issue;

    • (d) Part IV, with the caption “Order Requested”, and containing a statement of the order that the court will be asked to make;

    • (e) Schedule A, with the caption “Authorities to be Cited”, and containing a list of the authorities referred to, with citations, in the order in which they appear in Parts II and III or in alphabetical order;

    • (f) Schedule B, with the caption “Relevant Legislative Provisions” setting out the text of all relevant statutes except any provisions from the Code and the Young Offenders Act (Canada).

Length of factum

  • (5) Unless ordered by the Registrar or a judge, the factum, excluding the schedules, shall not exceed thirty pages in length.

Form of factum

  • (6) The appellant’s factum shall be bound front and back in blue cover stock and the respondent’s factum shall be bound front and back in green cover stock.

  • (7) The factum shall be printed on good quality white paper 216 millimetres by 279 millimetres in size and the text shall be printed, typewritten, written or reproduced legibly on one side only with double spaces between the lines, except for quotations which may be single spaced, and margins of approximately forty millimetres on the left-hand side.

  • (8) The characters used shall be of at least 12 point or 10 pitch size.

  • (9) Back sheets and covers shall be of 176g/m2 cover stock.

  • (10) The Registrar may refuse to accept a factum which does not comply with these rules, and in that case, the factum shall not be filed without a direction from a judge.

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.

 
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