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Criminal Appeal Rules (SI/93-169)

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Regulations are current to 2024-05-28

Variation of Bail

Judge may vary order

  •  (1) A judge may, on cause being shown, cancel an order previously made under section 679 of the Code and may make any order that could have been made under that section.

Order may be made without attendance of counsel

  • (2) An order for a new recognizance or undertaking varying a condition may be made by a judge without the attendance of counsel, upon filing the written consent of counsel for the respondent.

Content of material to be filed

  • (3) Where the appellant seeks an order under subrule (2) which varies a condition referred to in paragraph 33(a), the material filed in support of the application shall contain a summary of the status of the appeal, an explanation for any failure to comply with rule 8 or 18 and, where applicable, a statement of the earliest feasible date on which the appeal may be heard.

Definition of Justice

 For the purposes of section 679 of the Code, justice means any person in Ontario having the jurisdiction of a justice of the peace.

Post Sentence Report

  •  (1) A convicted person may apply to a judge for an order that a post-sentence report be prepared.

  • (2) In an inmate appeal, a judge, with the consent of the appellant, may order that a post-sentence report be prepared.

  • (3) Where a post-sentence report is ordered by a judge under subrule (1) or (2), the report shall be prepared in writing by a probation officer and filed with the Registrar as soon as is practicable and the Registrar shall forward a copy of the report to counsel for each party to the appeal and to any party who is not represented by a solicitor.

Notice

 An application referred to in rules 31 to 36 shall be on three clear days notice unless the respondent consents to, and a judge or the Registrar permits, a shorter period of notice.

APPEALS UNDER PART XX.1 - MENTAL DISORDERDefinitions and Application

  •  (1) In rules 39 to 47 the terms accused, court, disposition, hospital, party, placement decision, Review Board and verdict of not criminally responsible on account of mental disorder have the same meaning as in section 672.1 of the Code.

  • (2) Rules 39 to 47 apply to appeals under Part XX.1 of the Code.

  • (3) Except where inconsistent with rules 39 to 47, rules 1 (interpretation and definitions), 2 (application of civil rules), 6 (order without attendance of counsel), 7 (extension or abridgement of time), 9 (dismissal for failure to comply with rule re: transcripts), 19 (motion for directions), 21 (listing appeals), 22 (books of authorities), 23 (intervention), 24 (appeals in writing - non- inmate), 26 (extension of time), 29 (reasons for judgment), 30 (abandonment of appeals), 36 (post-sentence report) and 37 (notice) apply to appeals under Part XX.1 of the Code where appropriate and with necessary modifications.

Notice of Appeal

Form of notice of appeal

  •  (1) The notice of an appeal under section 672.72 of the Code shall be in Form E.

Time of service of notice of appeal

  • (2) The notice of appeal shall be served within fifteen days after the day on which the parties are provided with a copy of the disposition or placement decision and the reasons for it or within any further time that the Court of Appeal or a judge directs.

Manner of service of notice of appeal

  • (3) Service of the notice of appeal shall be effected,

    • (a) where the appellant is in custody and not represented by counsel, by delivering the notice of appeal to the person in charge of the hospital or institution in which the accused is in custody;

    • (b) in an appeal other than one mentioned in paragraph (a), by delivering to the office of the Registrar or by mailing to the Registrar by registered mail three copies of the notice of appeal and by mailing by registered mail to the person in charge of the hospital or other institution in which the accused, if such is the case, is in custody one copy of the notice of appeal and, in addition, in an appeal by the Attorney General or by a party other than the accused, by personal service on the accused or as may be directed by a judge.

  • (4) If the notice of appeal is not served within the time limited by this rule, the accused shall set out in Form E in the place provided therefor the grounds for applying for an extension of time.

Person in charge of hospital or other institution to supply forms and transmit material

  • (5) The person in charge of a hospital or other institution shall supply to any accused in his or her custody, upon request, a form of notice of appeal in Form E.

  • (6) The person in charge shall transmit to the Registrar any notice of appeal served upon him or her, and shall deliver forthwith to the accused any documents that are transmitted to the accused by the Registrar, and shall inform the Registrar of having done so.

Duty on Registrar

  • (7) Upon receipt of a notice of appeal, the Registrar shall transmit forthwith a copy of it to the court or Review Board that made the disposition or the Review Board that made the placement decision and to the Attorney General, except where the Attorney General is the appellant.

Transmission of original papers

  • (8) Upon receipt of the notice of appeal, the court or Review Board shall transmit forthwith to the Registrar,

    • (a) a copy of the disposition or placement decision;

    • (b) all exhibits capable of reproduction filed with the court or Review Board or copies of them; and

    • (c) all other material in its possession respecting the hearing.

Withheld information

  • (9) Where the material transmitted under subrule (8) includes disposition information withheld from the accused or any other person under subsection 672.51(3) or (5) of the Code, that information shall be segregated from the other material and clearly identified as being withheld information.

Transcripts

Where rule does not apply

  •  (1) This rule does not apply where the appellant is the accused and is not represented by a solicitor.

Certificate of reporter to accompany notice of appeal

  • (2) The appellant shall at the time the notice of appeal is filed with the Registrar file a certificate of the court reporter or of the reporter of the proceedings before the Review Board that copies of the transcript as required by these rules have been ordered.

  • (3) Subrules 8(3) to (6) and (14) to (18) apply with necessary modifications to the transcripts required by this rule.

Contents of transcript

  • (4) Unless otherwise ordered by a judge, the transcript shall include,

    • (a) where the appeal is from a disposition by the court following a finding of unfitness, all evidence and proceedings relating to the fitness issue and the disposition resulting therefrom;

    • (b) where the appeal is from a disposition by the court following a verdict of not criminally responsible on account of mental disorder, all evidence and proceedings following the verdict; and

    • (c) where the appeal is from a disposition or placement decision by the Review Board, all evidence and proceedings before the Review Board.

Agreed statement of facts in some cases

  • (5) Where the appeal is from a disposition following a finding of unfitness and the issue of fitness was postponed under subsection 672.25(2) of the Code, then within fifteen days after the filing of the notice of appeal the parties shall file an agreed statement of facts as to the evidence heard in respect of the offence which shall be included in the appeal book.

  • (6) In the event of difficulty in settling the statement of facts, counsel for either party may, on notice, attend upon a judge for directions.

Appeal Books

Contents of Appeal Book

  •  (1) Except where the appellant is the accused and is not represented by a solicitor, 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 information or indictment, including all endorsements;

    • (d) the placement decision or disposition;

    • (e) the reasons for the placement decision or disposition;

    • (f) any order made under section 672.76 of the Code, any other order or direction made in respect of the appeal and any agreement made by the parties;

    • (g) all documentary exhibits filed at the hearing before the court or the Review Board arranged in order by date or, where there are documents having common characteristics, arranged in separate groups in order by date, except disposition information which has been withheld from the accused or any other party under subsection 672.51(3) or (5) of the Code;

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

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

Material may be omitted

  • (2) Notwithstanding subrule (1), with the consent of the parties or as directed by a judge, some or all of the material referred to in paragraph (1)(g) may be omitted from the appeal book.

Application

  • (3) Subrules 14(3), (4) and (5) apply with necessary modifications to the appeal books required by this rule.

Preparation of appeal book by Attorney General

  • (4) Where the appellant is the accused and he or she is not represented by counsel, the Registrar shall request the Attorney General to prepare an appeal book.

Registrar may excuse compliance

  • (5) The Registrar may, in writing, in an appropriate case, excuse the Attorney General from complying with subrule (4).

Attorney General to provide copies of appeal books

  • (6) The Attorney General shall mail one copy of the appeal book to the appellant and to the person in charge of the hospital or other institution in which the accused is in custody and file three copies of the appeal book with the Registrar.

Factums

Heading of factum

  •  (1) Except where the appellant is the accused and is not represented by a solicitor, the appellant shall deliver a factum, to be entitled and described on its cover as “Appellant’s Factum”.

  • (2) All other parties to the appeal shall each deliver a factum to be entitled and described on its cover as “Respondent’s Factum”, or as the case may be.

Contents of factum

  • (3) The appellant’s factum shall be prepared in accordance with subrule 16(3), with necessary modifications, and the factum of any other party to the appeal shall be prepared in accordance with subrule 16(4), with necessary modifications.

Application

  • (4) Subrules 16(2), (5), (6), (7), (8), (9) and (10) apply, with necessary modifications, to the factums required by this rule.

Perfecting the Appeal

Serving and filing

  •  (1) Except where the appellant is the accused and is not represented by a solicitor, the appellant shall serve on each party to 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 appeals directed to be heard by three judges, 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, or where a party acts in person, his or her name, address for service and telephone number.

Time for perfection

  • (3) The appellant shall perfect the appeal by complying with subrules (1) and (2) 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.

Service of factum on other parties to appeal

  • (4) Any other party to the appeal shall file four copies of his or her factum with the Registrar and serve one copy of the factum on each other party to the appeal not later than ten days before the week in which the appeal is to be heard.

Failure to Perfect Appeal

 Rule 20 applies, with necessary modifications, where an appellant has not perfected an appeal within the time limits set out in rule 43.

Interim Orders Respecting Disposition and Placement Decisions

Application to single judge

  •  (1) An application for an order under section 672.76 of the Code shall be made to a judge.

Contents of application

  • (2) The notice of application shall specify the order sought to be made.

Contents of affidavit

  • (3) The applicant shall file an affidavit or affidavits establishing,

    • (a) the particulars respecting the disposition or placement decision;

    • (b) the particulars respecting any disposition or order for the interim release or detention of the accused, as the case may be, that was in effect immediately before the disposition or placement decision appealed from took effect;

    • (c) the reasons that the mental condition of the accused justifies the order sought to be made;

    • (d) any other relevant facts that the applicant alleges justify the order sought to be made; and

    • (e) the date by which the appeal can be expected to be perfected.

  • (4) The application shall be on three clear days notice to the other parties unless otherwise ordered by a judge.

Procedure where Appellant Unrepresented

 Where the appellant is the accused and is not represented by a solicitor, the appeal shall be conducted, as nearly as may be, in the same manner as an inmate appeal under rules 1 to 37.

Combined Appeal

  •  (1) Where an appellant is appealing both a disposition or a placement decision and a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the appellant, in the preparation of the transcript, appeal book and factum for the appeal, shall consolidate, to the extent feasible, the provisions respecting transcripts, appeal books and factums set out in rules 40, 41 and 42 with the corresponding provisions set out in rules 8, 14 and 16.

  • (2) A judge may make such order in respect of the matters referred to in subrule (1) as is considered just in order to secure the fair and expeditious conduct of the appeal.

Transitional

  •  (1) In this rule and in rule 49, preceding rules means rules 13 to 40, set out in Part II of the Rules Respecting Criminal Proceedings entitled “Appeals to the Court of Appeal in Criminal Matters”, published on the 11th day of December, 1985, in the Canada Gazette, Part II, as Statutory Instrument SI/85-205, made on the 4th day of September, 1985, and brought into force on the 1st day of January, 1986.

  • (2) These rules apply to all appeals, whether commenced before or after these rules come into force, except in respect of steps already taken under the preceding rules.

  • (3) Notwithstanding rule 49 and subrule (2), a judge may make an order that an appeal, or a step in the appeal, be conducted under these rules or the preceding rules or make any other order that is considered just in order to secure the fair and expeditious conduct of the appeal.

 

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