Rule 91 — Criminal Appeal (SI/2009-3)

Abbreviating transcript or appeal book

• 91.16 (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

• 91.17 (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

• 91.18 (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.

Book of authorities

• 91.19 (1) A party to an appeal who wishes to rely on authorities in argument, such as a judicial decision or a scholarly article, must file five copies of a book of authorities at the same time that the party files a factum.

• (2) Parties must make best efforts to agree on, prepare, and file a joint book of authorities.

• (3) The book of authorities must be in the same format and have the same content as is required under Rule 90.33.

Dismissing appeal summarily

• 91.20 (1) A judge of the Court of Appeal may dismiss an appeal of a judgment from which no appeal lies to the Court.

• (2) A judge of the Court of Appeal may dismiss an appeal in which the appellant fails to comply with this Rule 91, such as failing to comply with a Rule, or directions given under a Rule, on any of the following subjects:

  • (a) ordering a transcript;

  • (b) the form and service of the notice of appeal;

  • (c) filing and delivering a transcript, appeal book, and appellant’s factum.

• (3) A judge of the Court of Appeal may give directions for the completion of a prisoner appeal in which the Attorney General fails to comply with this Rule.

• (4) A judge of the Court of Appeal hearing a motion to dismiss an appeal summarily, or to give directions as a result of a failure of the Attorney General, may, in addition to determining the motion, give directions on the appeal generally, order costs, where otherwise permitted by law, or require the defaulting party to indemnify another party for the expenses caused by the default.

Management of appeal

• 91.21 (1) The Chief Justice may appoint a judge of the Court of Appeal, or panel of judges of the Court of Appeal, to assist in the management of an appeal.

• (2) A party may request the appointment of an appeal management judge, or panel of judges, by filing a request with the registrar.

• (3) An appeal management judge, or panel of judges, may give directions that are consistent with this Rule 91 and determine motions.

• (4) Directions may be given and motions may be heard in conference, by correspondence, in chambers, by teleconference, or otherwise, as the appeal management judge, or panel of judges, decides.

• (5) The following are examples of subjects that may be dealt with in judicial management of an appeal:

  • (a) setting tasks and deadlines to complete all steps to the hearing of the appeal;

  • (b) settling the order of argument;

  • (c) limiting the time allocated to each party for argument;

  • (d) settling the issues to be argued and determined;

  • (e) scheduling motions before the hearing of the appeal.

• (6) Directions may be varied on motion.

• (7) An appeal management judge, or panel of judges, may direct that the conference be recorded by the Court of Appeal.

• (8) An appeal management judge, or panel of judges, may make an order after a conference that does any of the following:

  • (a) records the subjects discussed, and agreements made, at the conference;

  • (b) records directions given at the conference, or gives further directions;

  • (c) gives effect to a ruling on an issue relating to the appeal book or a factum, or procedure for an upcoming hearing submitted to the judge at the conference with the consent of the parties.

• (9) An appeal management judge, or panel of judges, who determines relief must do so by order if a party seeks relief from compliance with these Rules, and an order is required.

Deciding appeal after granting leave

91.22 The Court of Appeal may, after determining to grant leave to appeal, do either of the following:

• (a) give directions for the hearing of the appeal;

• (b) decide the appeal without further argument, if the merits have been fully argued.

Abandonment of appeal

• 91.23 (1) An appellant may abandon an appeal by filing a notice of abandonment.

• (2) A notice of abandonment must be entitled “Notice of Abandonment”, be dated and signed, and include a notice that the appellant abandons the appeal.

• (3) The signature of an appellant who personally signs a notice of abandonment must be verified by affidavit, by the signature of counsel as subscribing witness, or by the signature, as subscribing witness, of an officer of the institution in which the appellant is imprisoned.

• (4) The notice of abandonment may be in Form 91.23.

• (5) A notice of abandonment must be filed and delivered in the same way as a notice of appeal under Rule 91.10.

• (6) A notice of abandonment has the same effect as an order dismissing an appeal, unless a judge who is satisfied that it is in the interest of justice to do so permits the appellant to withdraw the abandonment.

• (7) A respondent may make a motion for an order dismissing an abandoned appeal.

Release pending appeal

• 91.24 (1) An appellant who appeals against sentence only, is in custody, and wishes to be released pending appeal must make a motion to a judge of the Court of Appeal for leave to appeal, which motion may be heard together with a motion for an order for release under section 679 of the Code and be determined before or at the same time as the motion for release is determined.

• (2) An appellant who makes a motion for release from custody pending appeal under section 679 of the Code must provide evidence of all of the following, by affidavit or agreed statement of facts filed with the notice of motion:

  • (a) details of the conviction;

  • (b) details of any ground of appeal that the appellant omitted from the notice of appeal and wishes to argue;

  • (c) the appellant’s age, status as a single person or partner or spouse, places of residence in the three years before the conviction, employment before conviction, prospects for employment if released, including the place of prospective employment if released, and any criminal record;

  • (d) the unnecessary hardship of being detained in custody, if the appeal is of sentence only;

  • (e) the amount of money or the value of other security the appellant proposes, if the appellant proposes release on a recognizance with sureties;

  • (f) the names of sureties and the amount for which each is to be liable, if sureties are proposed and arrangements have been made with them.

• (3) An appellant who makes a motion under this Rule must, unless directed otherwise by a judge, file with the notice of motion:

  • (a) the decision of the sentencing judge;

  • (b) the submissions made at the sentencing hearing;

  • (c) a copy of any presentence report;

  • (d) a copy of the appellant’s criminal record, if any;

  • (e) a proposed form of order for release pending appeal.

• (4) The Attorney General who opposes release must provide evidence by affidavit or agreed statement of facts on any fact alleged by the Attorney General and not established by the affidavit or agreed statement of facts of the party seeking release, or by cross-examination.

• (5) A party may cross-examine a witness who swears or affirms an affidavit filed by the other party.

Exhibits

• 91.25 (1) A judge, clerk, or prothonotary of a court who makes a judgment must retain custody of the exhibits admitted, and other materials that were before the court, in the proceeding that led to the judgment for no less than 25 days after the later of either of the following:

  • (a) the day the deadline for filing a notice of appeal under Rule 91.09(1) expires;

  • (b) the day the deadline extended under Rule 91.09(2) expires.

• (2) The Attorney General who receives or files a notice of appeal must give notice of the appeal to the judge, clerk, or prothonotary who has custody of the exhibits and other materials.

• (3) The judge, clerk, or prothonotary who is notified must continue to retain custody of exhibits and other materials until one of the following happens:

  • (a) a judge of the Court of Appeal or the registrar directs that the exhibits and other materials be delivered to the registrar or another person;

  • (b) the appeal is finally determined.

• (4) The judge, clerk, prothonotary, or registrar must, unless the judge or a judge of the Court of Appeal orders otherwise, return the exhibits and other materials to the party who produced them or the party’s counsel when the periods provided in Rule 91.23(1) or (3) expire.

• (5) This Rule 91.23 does not apply to the custody of exhibits and other materials that is provided for in the Code or other legislation, such as the Controlled Drugs and Substances Act.