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Criminal Proceedings Rules for the Superior Court of Justice (Ontario) (SI/2012-7)

Regulations are current to 2024-02-20 and last amended on 2014-01-01. Previous Versions

Part IV: Summary Conviction Appeals and Extraordinary Remedies [Rules 40-49] (continued)

Rule 40: Summary Conviction Appeals[Code, ss. 813, 830(1)] (continued)

Books of Authorities

  •  (1) Books of authorities shall be served and filed by the appellant at the time of filing the appellant’s factum.

  • (2) The books of authorities shall contain only those authorities that the parties intend to refer to in oral argument.

  • (3) The portions of the authorities to which reference may be made in oral argument shall be highlighted or sidebarred.

  • (4) The copies of the authorities shall be legible, and may be printed on both sides of each page.

  • (5) Books of authorities shall be served and filed by the respondent and other parties to the appeal at the time of filing the respondent’s or other party’s factum, and shall not contain any authorities in the appellant’s book of authorities.

Perfecting Appeals

  •  (1) An appeal is perfected when:

    • (a) the material described in subsection 821(1) of the Code and in subrule 40.07(2) has been received by the clerk of the appeal court;

    • (b) a copy of the transcript, agreed statement of facts, if any, and appeal book have been received by the clerk of the appeal court, or a judge has made an order dispensing with the filing thereof;

    • (c) any application made under subsection 822(4) of the Code and rule 40.16 has been dismissed; and,

    • (d) the appellant has filed his or her factum.

Consequences of Perfecting Appeal
  • (2) When an appeal is perfected, it is ready for hearing and may be entered on a list for hearing.

Fixing Date for Hearing

 When an appeal is listed for hearing, the clerk of the appeal court shall contact the parties and fix the date for the hearing of the appeal, or where dates are not so fixed, shall give notice to the parties of a date at which the parties shall appear before a judge, for the purpose of scheduling a date for the hearing of the appeal.

Appeals in Writing

Notice of Intention
  •  (1) Where an appellant in an appeal wishes to present his or her case on appeal and argument in writing, the appellant shall give notice of such intention in Form 2B within the time and in the manner prescribed in subrule 40.10(1) respecting appeal books.

Materials to be Filed
  • (2) On an appeal in writing, the appellant shall serve and file transcripts of evidence (if any), appeal books and all other material, except factums, within such time and within such manner as would be required if the appeal were to be heard with oral argument and shall further serve and file his or her written argument within 90 days of the appeal being perfected.

Consideration of Materials Filed
  • (3) The material on the appeal in writing shall be considered by a judge in chambers who may give directions as to whether the respondent should be requested to serve and file written argument and prescribe the times for doing so as well as for the service and filing of any reply in writing by the appellant.

  • (4) Where the judge in chambers considers that no written argument from the respondent is required, he or she shall prepare written reasons for dismissing the appeal.

  • (5) Where the judge in chambers directs that the respondent provide written argument and the appellant written argument in reply, the appeal shall be considered by the judge in chambers who required argument, or any other judge, who shall give written reasons for his or her decision.

  • (6) The reasons described in subrules (4) and (5) shall be dealt with as if they were a reserved judgment.

Trials De Novo

Application
  •  (1) An application under subsection 822(4) of the Code for a trial de novo shall be made before a date has been fixed for hearing the appeal under rule 40.14.

Notice of Application
  • (2) Notice of an application for a trial de novo shall be served on every other party at least seven days in advance, except that, if the notice is filed with the notice of appeal, it shall be served with the notice of appeal in accordance with subrule 40.06(1).

Date for Hearing of Application
  • (3) Upon receipt of an application under subrule (1), the clerk of the appeal court shall enter the application for hearing on a date fixed by a judge or, where hearing dates are not so fixed, enter the application on a list of applications to be heard at a regular or special sitting of the appeal court.

Notice
  • (4) Unless a judge otherwise orders, the clerk of the appeal court shall serve each party with a notice of the date on which the application is to be heard.

  • SI/2014-5, s. 26

Abandonment of Appeals

Notice
  •  (1) Where an appellant wishes to abandon his or her appeal, in whole or in part, he or she shall serve on the respondent, in the manner provided in rule 5, a notice of abandonment in Form 9, signed by the counsel of record in the appeal, or by the appellant (in which case the signature shall be verified by affidavit or solemn declaration or witnessed by a counsel or the senior official of the institution in which the appellant is confined).

Dismissal as Abandoned
  • (2) A judge in chambers may thereupon dismiss the appeal as an abandoned appeal, without the attendance of the counsel of record or the appellant.

Supervision of Appeals and Dismissal for Non-Compliance

Supervision Hearings
  •  (1) Unless otherwise ordered by a judge of the court, the clerk of the appeal court shall, on notice to both parties, place before a judge, at a time and place specified by the clerk in the notice, any appeals including:

    • (a) where all transcripts required for the appeal pursuant to this rule or as ordered by a judge have not been served and filed with proof of service within 90 days of the date the notice of appeal was filed.

    • (b) where the appellant’s appeal book has not been served and filed within 15 days of notification that all transcripts ordered are available or within 60 days of the filing of the notice of appeal in a case in which an agreed statement of facts is filed;

    • (c) where the appellant’s factum has not been served and filed within 90 days of receiving the Court Reporter’s Completion Certificate pursuant to subrule 40.11(4);

    • (d) where the respondent’s factum has not been served and filed not later than 10 days of the week in which the appeal is scheduled to be heard;

    • (e) where an order staying or suspending an order of the trial court, or an order releasing the appellant from custody pending the hearing of the appeal, has expired before the hearing of the appeal;

    • (f) where the appellant fails to serve and file a written appeal in accordance with subrule 40.15(1), and the material required by subrule 40.15(2); or,

    • (g) Any other circumstance in which it appears to the clerk of the appeal court that there has been undue delay in perfecting or fixing a date for the appeal for any reason.

  • (2) Notwithstanding subrules (1) and (3), where the only reason a transcript has not been filed is that a court reporter has not prepared the transcript, the appellant may notify the respondent in writing of the reason for the delay and need not attend the supervision hearing mentioned in subrule (1) unless otherwise ordered by a judge.

  • (3) Where the clerk of the appeal court provides counsel with a notice of supervision hearing under this rule, directing that counsel of record for the appellant and respondent or counsel on their behalf fully instructed and fully authorized to deal with the matter attend the hearing, the counsel shall appear before the judge at the time and place fixed in the notice of supervision hearing, without further notice.

  • (4) After hearing the counsel of record or counsel appearing on their behalf fully instructed and fully authorized to deal with the matter, or where counsel does not appear, the judge may make any order concerning the appeal as he or she deems appropriate, including dismissing the appeal as abandoned.

  • SI/2014-5, s. 27

Appeals Alleging Ineffective Assistance or Incompetence of Counsel

  •  (1) Where a notice of appeal, factum or appeal in writing includes a direct or indirect allegation that the appellant’s trial counsel was incompetent or for any other reason provided ineffective assistance, the counsel filing the notice of appeal, factum or appeal in writing and the respondent shall notify the clerk of the appeal court forthwith of the allegation.

  • (2) Upon being notified in accordance with subrule (1), the clerk of the appeal court shall set a date for the attendance of the parties for directions by a judge.

  • (3) Where a notice of appeal directly or indirectly raises the issue of incompetence or ineffective assistance of counsel at trial, the parties to the appeal shall comply with the Superior Court of Justice Protocol – Allegations of Incompetence (Schedule 1).

Time Estimates for Appeal Hearing

  •  (1) Where the appellant’s factum is filed, a judge may review it and assign a time estimate for the hearing of the appeal.

  • (2) When a judge assigns a time estimate that is different from the appellant’s time estimate, the clerk of the appeal court shall notify the parties in writing of the change, and the content of subrule (3).

  • (3) Any time assigned for the hearing of the appeal by a judge, other than the judge hearing the appeal, is subject to revision by the judge hearing the appeal.

Hearings of Appeals from Sentence Only

 On the appeal from sentence only, the appellant shall be limited to 15 minutes for oral argument, the respondent to 10 minutes, and the appellant to 5 minutes for reply, except with the leave of the judge hearing the appeal.

Failure to Appear for the Hearing of the Appeal

Failure to Appear
  •  (1) Where an appellant fails to appear personally, or by a counsel of record, on the date and at the time fixed for the hearing a judge may, on proof that notice of hearing of the appeal has been given, dismiss the appeal for want of prosecution.

  • (2) Where a respondent fails to appear personally, or by a counsel of record, on the date and at the time fixed for the hearing of the appeal a judge may, upon being satisfied that the appellant has not him or herself defaulted under subrule (1), determine the appeal in the absence of the respondent or argument from the respondent, as the case may be.

Reasons for Judgment

Where Reasons in or Reduced to Writing
  •  (1) In every appeal where reasons are given in writing or given orally and later reduced to writing, the clerk of the appeal court shall send a copy of the reasons:

    • (a) where an appellant or respondent has appeared in person, to the appellant or respondent, as the case may be,

    • (b) where the appellant or respondent has appeared by a counsel of record, to the counsel of record for the appellant or respondent, as the case may be,

    • (c) to the trial court from which the appeal was taken, and,

    • (d) to the Regional Senior Judge of the Ontario Court of Justice in the region in which the proceedings arose.

Where Reasons in Writing Not Given
  • (2) Where reasons in writing are not given, the clerk of the appeal court shall notify the trial court of the result of the appeal.

Rule 41: Stays and Suspensions Pending Appeal[Code ss. 261 & 683(5)]

Application of the Rule

 This rule applies to applications for an order:

  • (a) under section 261 of the Code, directing that any order under subsection 259(1) or (2) of the Code arising out of a conviction or discharge in respect of an offence under any of sections 220, 221, 236, 249 to 255 or 259 of the Code be stayed pending the final disposition of an appeal or until otherwise ordered by the court; and,

  • (b) under subsection 683(5) of the Code, directing that any order there described be suspended until an appeal under section 813 of the Code has been determined.

To Whom Made

 Applications under rule 41.01 shall be made to a judge in the region or county in which the appeal to which the application relates is to be heard.

Materials for Use on Application

Materials to be Filed
  •  (1) The notice of application in Form 1 under this rule shall be accompanied by:

    • (a) a copy of the information in which is contained the charge upon which the applicant was convicted or discharged of the offence to which the application relates;

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

    • (c) a properly signed and commissioned affidavit of the applicant deposing to the matters described in subrule (2); and,

    • (d) a copy of any other material in the court file that is necessary for the hearing and determination of the application.

Affidavit of the Applicant
  • (2) The affidavit of the applicant required by paragraph (1)(c) shall contain:

    • (a) particulars of the offence of which the applicant was convicted or discharged, including reference to the results of any analyses of the applicant’s bodily substances to determine the presence of alcohol or drugs, and whether the offence involved property damage, bodily harm or death;

    • (b) particulars of the applicant’s driving record, if any;

    • (c) a statement of the applicant’s places of abode in the three years preceding his conviction or discharge and where the applicant proposes to reside pending the determination of the appeal;

    • (d) particulars of the applicant’s employment prior to conviction or discharge, and whether such employment is reasonably expected to continue pending the determination of the appeal;

    • (e) particulars of the applicant’s criminal record, if any;

    • (f) a statement whether the applicant is addicted to the use of alcohol or other drugs and, if so, what steps, if any, the applicant has undertaken or proposes to undertake for the treatment of such addiction pending the determination of the appeal; and,

    • (g) particulars of what unnecessary hardship would be caused to the applicant if the stay or suspension were not entered.

Applicant’s Application Record
  • (3) Unless otherwise ordered by the judge hearing the application, the applicant shall prepare, serve and file an application record in accordance with rule 41.03, but no factum shall be required.

Respondent’s Application Record
  • (4) The respondent may prepare, serve and file a respondent’s application record in accordance with rule 41.03 but no factum shall be required.

  • SI/2014-5, s. 33(E)

Service and Filing of Notice

General Rule
  •  (1) Service of the notice of application under subrule 41.03(1) and of the supporting materials required by subrule 41.03(2) shall be made upon the respondent, in accordance with rule 5, at least 2 clear days before the date fixed for the hearing of the application.

Filing with Proof of Service
  • (2) The notice of application and supporting materials, together with proof of service thereof, shall be filed at least 2 clear days before the date fixed for the hearing of the application.

Consent in Writing

 The respondent may consent in writing to the order sought upon terms included in a draft order filed and a judge, satisfied that the relief sought by the applicant should be granted, may grant the order on such terms without the attendance of counsel.

Limitation on Stay or Suspension

 Unless otherwise ordered by the judge hearing the application or determining the application in chambers on consent, an order staying or suspending an order imposed by the trial court shall contain a date when the stay or suspension will expire that is not later than 9 months from the date of the order.

Rule 42: Release from Custody Pending Appeal[Code ss. 816 & 832(1)]

Application of the Rule

 This rule applies to applications by a person who was the defendant in a summary conviction proceeding and by whom an appeal has been taken under section 813 or 830 of the Code for release from custody pending the hearing or determination of the appeal.

To Whom Application Made

 An application referred to in rule 42.01 shall be made to a judge in the region or county in which the appeal to which the application relates is to be heard.

Materials for Use on Application

Materials to be Filed
  •  (1) The notice of application in Form 1 under this rule shall be accompanied by:

    • (a) a copy of the information in which is contained the charge in respect of which the appeal is taken;

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

    • (c) a properly signed and commissioned affidavit of the applicant deposing to the matters described in subrule (2); and,

    • (d) a copy of any other material in the court file that is necessary for the hearing and determination of the application.

Affidavit of the Applicant
  • (2) The affidavit of the applicant required by paragraph (1)(c) shall state:

    • (a) the particulars of the conviction and, where applicable, sentence imposed at trial;

    • (b) any grounds of appeal not specified in the notice of appeal or supplementary notice of appeal;

    • (c) the places of abode of the appellant in the three years preceding the conviction, and where the appellant proposes to reside if released;

    • (d) the employment of the appellant prior to conviction and whether the appellant expects to be employed if released and, if so, where;

    • (e) the criminal record of the appellant, if any;

    • (f) what hardship would be caused if the appellant were to be detained in custody pending the determination of the appeal; and,

    • (g) where the appellant proposes to enter into a recognizance with sureties, the amount of money or value of other security that the appellant proposes should be deposited and, where practicable, the names of the sureties and the amount for which each is to be liable.

Affidavit on Behalf of the Prosecutor
  • (3) Where the prosecutor wishes to assert that the detention of the applicant is necessary in the public interest, and to rely on material other than required to be filed under subrule (1) or (2), the prosecutor shall serve and file an affidavit setting out the facts upon which reliance is placed.

Cross-Examination on Affidavits
  • (4) Where an affidavit has been filed under this rule, the party opposite may cross-examine on such affidavit in accordance with rule 6.07.

Applicant’s Application Record and Factum
  • (5) The applicant shall prepare an application record which shall contain, in consecutively numbered pages arranged in the following order:

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

    • (b) a copy of the notice of application;

    • (c) a copy of all material required to be filed under subrule (1), including a list of all relevant transcripts of evidence in chronological order, but not necessarily the transcripts themselves; and,

    • (d) a copy of any other material in the court file that is necessary for the hearing of the application,

    but, unless a judge otherwise orders, no factum is required.

Respondent’s Application Record and Factum
  • (6) Where the respondent is of the opinion that the application record is incomplete, the respondent shall, as soon as practicable after being served with the application record, prepare, serve and file with the clerk of the court in the place where the application is to be heard the respondent’s application record containing:

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

    • (b) a copy of the material to be used by the respondent on the application and not included in the application record,

    but, unless a judge otherwise orders, no factum shall be required.

Material May be Filed as Part of Record
  • (7) Any material served by a party for use on an application may be filed, together with proof of service, as part of the party’s application record and need not be filed separately if the record is filed within the time prescribed for filing the notice or other material.

  • SI/2014-5, s. 33(E)
 

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