Rule 91 — Criminal Appeal (SI/2009-3)

Regulations are current to 2017-11-20

Setting time for appeal hearing and deadlines for filing documents

  •  (1) An appellant, or in a prisoner appeal the Attorney General, must make a motion to a judge of the Court of Appeal to appoint a time and date for the appeal to be heard and to provide directions for the appeal, including when the transcript, appeal book, and factums are to be filed.

  • (2) The motion to appoint a time and date and provide directions must be scheduled by the appellant or Attorney General to be heard no more than 80 days after the day the notice of appeal is filed.

  • (3) A judge of the Court of Appeal may on his or her own motion set a time for the hearing of any appeal, whether perfected or not, and if the appeal has not been perfected may direct what appeal book or factums or other material shall be filed.

Certificate of readiness

 An appellant, or in the case of a prisoner appeal the Attorney General, must file a certificate of readiness that complies with Rule 90.26 in support of the motion for directions under Rule 91.12(1) no less than five days before the motion is to be heard.

Obtaining transcript

  •  (1) An appellant, or in the case of a prisoner appeal the Attorney General, must request a copy of the audio recording of the proceeding from the prothonotary or clerk of the court whose judgment is being appealed from, and pay the prescribed fee to the prothonotary or clerk.

  • (2) The prothonotary or clerk, on receipt of the prescribed fee from the appellant or the Attorney General, must provide the appellant or the Attorney General with an audio recording of the entire hearing of the proceedings, including evidence, the oral submissions, the jury charge, and all oral rulings and decisions.

  • (3) The appellant, or in the case of a prisoner appeal the Attorney General, must cause a transcript of the proceeding to be prepared by a certified court reporter in compliance with subsection 682(4) of the Code.

Appeal book

  •  (1) An appeal book must be in the same format as an appeal book under Rule 90.30(3).

  • (2) The appeal book must, except for the modifications in Rule 91.15(3) applicable to a sentence appeal, contain each of the following, unless the parties agree or a judge orders otherwise:

    • (a) Part 1 - Documents:

      • (i) a table of contents referring to each document and the page number at which it begins,

      • (ii) a copy of the notice of appeal and of any notice of cross-appeal,

      • (iii)  a copy of the information, indictment, or other document by which the proceeding under appeal was started,

      • (iv) a copy of the decision under appeal,

      • (v) a copy of the order or other instrument giving effect to the determination under appeal,

      • (vi) a reference sheet containing the heading of the proceeding under appeal, the court or registry number, the name of the judge who made the judgment, the date of the trial or hearing, and the date of the judgment;

    • (b) Part 2 - Evidence and Related Materials:

      • (i) an index of witnesses describing each witness, including the name of the witness, the party who called the witness, and the page reference in the appeal book where the direct examination, cross-examination, or redirect examination begins,

      • (ii) a list of all exhibits,

      • (iii) a copy of the transcript of everything said in the course of the proceedings under appeal, including all of the following:

        • (A) a headline on each page stating the name of the witness and whether it is direct examination, cross-examination, or redirect examination,

        • (B) unless the individual lines of the transcript are numbered, the questions must be numbered consecutively, and each question to be preceded by the letter “Q” and each answer by the letter “A”,

        • (C) a copy of the transcript of submissions made,

      • (iv) a copy of each documentary exhibit or electronic information admitted into evidence, indexed and numbered as at the trial, including any statement of facts, affidavits and written admissions,

      • (v) a copy of an agreement to limit the contents of the transcript or appeal book,

      • (vi) a copy of an agreed statement of facts in substitution for omitted parts of a transcript or appeal book,

      • (vii) a copy of any charge to the jury, certified by the trial judge to be accurate.

  • (3) Rule 91.15(2) applies on a sentence appeal with all of the following modifications:

    • (a) the appeal book need not include exhibits entered at a trial but must include exhibits entered at the sentencing;

    • (b) the appeal book need not include the transcript of the evidence of trial if only the sentence is appealed;

    • (c) the appeal book must include

      • (i) a presentence report that was before the sentencing judge,

      • (ii) a statement of the accused’s criminal record that was before the sentencing judge if the accused has a record,

      • (iii) a copy of each order related to the sentence, such as a discharge, probation order, order for a conditional sentence, or warrant of committal.

  • (4) An appellant, other than an appellant in a prisoner appeal, must file five copies of an appeal book and deliver a copy to the respondent, in accordance with the directions given by a judge of the Court of Appeal under Rule 91.12.

  • (5) In a prisoner appeal, the Attorney General must file five copies of an appeal book, in accordance with the directions given by a judge of the Court of Appeal under Rule 91.12, that conforms with one of the following and deliver a copy to the institution where the appellant is imprisoned:

    • (a) Rule 91.15(2), in an appeal that is not only from sentence;

    • (b) Rule 91.15(2) as modified by Rule 91.15(3), in an appeal only from sentence.

  • (6) When a document in a prisoner appeal is delivered to the institution in which the appellant is imprisoned, the senior official of the institution must immediately deliver it to the appellant.

  • (7) An appellant, or in the case of a prisoner appeal the Attorney General, must file an electronic copy of the transcript in a format satisfactory to the registrar, in addition to filing paper copies, unless the registrar or a judge of the Court of Appeal orders otherwise.

  • (8) An appeal book may not be filed by fax.

Abbreviating transcript or appeal book

  •  (1) The parties may agree to omit from a transcript or appeal book anything the parties consider unnecessary to an appeal.

  • (2) The parties may agree to a statement of facts so as to make a transcript, part of a transcript, or part of an appeal book unnecessary.

  • (3) An agreement and an agreed statement of facts must be in writing and be filed.

  • (4) A judge may order that a party need not file a transcript or may omit anything from a transcript or appeal book.

Appeal with written submissions only

  •  (1) A party may choose to make all submissions in writing and not attend a hearing of the appeal.

  • (2) A party who chooses to make submissions in writing only must state the intention to do so either in the notice of appeal or by a written notice to the other party and the court before the deadlines for filing factums set by a judge of the Court of Appeal.

  • (3) A party who chooses to make all submissions in writing must file a factum that complies with Rule 91.18.

  • (4) A judge of the Court of Appeal may direct when the factum is to be filed.

Factum

  •  (1) The parties must file five copies of a factum and deliver a copy to the other party by one of the following deadlines, unless a judge of the Court of Appeal permits otherwise:

    • (a) for the appellant’s factum, no more than 10 days after the day the transcript and appeal book are filed;

    • (b) for the respondent’s factum, no more than 10 days after a copy of the appellant’s factum is delivered to the respondent.

  • (2) A factum must be in the same format and have the same content as is required in a factum under Rule 90.32.

  • (3) A judge of the Court of Appeal may excuse a party who is not represented by counsel from compliance with this Rule 91.18.

  • (4) A factum may not be filed by fax.

 
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