Criminal Proceedings Rules for the Superior Court of Justice (Ontario)

Version of section 40.08 from 2012-03-01 to 2013-12-31:

  •  (1) Except in the case of appeals to which subrules (3) and (4) apply, appeals in which counsel will be filing an agreed statement of fact in relation to the evidence pursuant to subrule 40.08(6) or (7) as the case may be, or where otherwise directed by the clerk of the appeal court, the appellant shall, at the time the notice of appeal is filed, furnish a certificate in Form 2C from each court reporter who took the evidence stating that copies of the transcript as required by these rules have been ordered.

  • (2) Where the appellant is unable to obtain a certificate in Form 2C from each court reporter by the time of filing the notice of appeal, the appellant may file the notice of appeal, the certificates in Form 2C that have been obtained and written confirmation that all other transcripts have been ordered. Where all certificates in Form 2C are not filed at the time the notice of appeal is filed, the appellant shall file the outstanding certificates in Form 2C within 30 days of filing the notice of appeal.

Where Provisional Certificate Granted
  • (3) Where an appellant has been granted a provisional certificate under the Legal Aid Services Act, 1998 which is limited to the filing of a notice of appeal or to the filing of a notice of appeal and the making of an application for release from custody pending appeal, the counsel of record acting under such certificate may file the notice of appeal without ordering the transcript, but when a legal aid certificate authorizing the carrying on of the appeal is granted, the counsel shall furnish the certificates required under subrule (1) within 15 days from the granting of such legal aid certificate, subject to subrule 40.08(2).

Where No Provisional Certificate Granted
  • (4) Where an appellant has applied for a certificate under the Legal Aid Services Act, 1998, but no provisional certificate has been granted, he or she shall file, at the time of filing the notice of appeal, proof of such application, and may lodge the notice of appeal without ordering the transcript or filing certificates of the court reporter, but when a legal aid certificate authorizing the carrying on of the appeal is granted, the counsel shall furnish the certificates required under subrule (1) within 15 days from the granting of such legal aid certificate subject to subrule 40.08(2).

  • (5) Within 15 days of receipt of the final decision of the area committee refusing the issuance of a legal aid certificate, the appellant shall furnish the certificates required under subrule (1).

Agreed Statements of Fact
  • (6) In appeals under s. 813 of the Code, where the facts are not in dispute, an agreed statement of facts served and filed within 30 days of the filing of the notice of appeal may take the place of the transcript of trial evidence.

  • (7) In appeals under s. 830 of the Code, where the facts are not in dispute, an agreed statement of facts served and filed within 15 days of the filing of the notice of appeal pursuant to subsection 830(2) of the Code may take the place of the transcript of trial evidence.

  • (8) Despite subsections (6) and (7), where an agreed statement of facts has been served and filed, the appellant must serve and file a transcript of the reasons for judgment, reasons for sentence, and full submissions and any ruling pertaining to the issues under appeal, and if there is an appeal of the sentence, all submissions and evidence called at the sentencing hearing.

  • (9) Where the appellant intends to file an agreed statement of fact, counsel may serve and file a written notification that they intend to do so at the time of filing the notice of appeal, without filing a Certificate in Form 2C.

  • (10) Where the parties have not filed an agreed statement of fact within 45 days of filing the notice of appeal pursuant to s. 813 of the Code, the appellant must serve and file a Certificate in Form 2C within 60 days of filing the notice of appeal unless otherwise ordered by a judge.

  • (11) Where the parties have not filed an agreed statement of fact within 15 days of filing the notice of appeal pursuant to s. 830 of the Code, the appellant must serve and file a Certificate in Form 2C within 30 days of filing the notice of appeal unless otherwise ordered by a judge.

  • (12) Where the appellant cannot comply with the 15 day period mentioned in subsection (7), and seeks an extension of time pursuant to rule 3.02, the judge hearing the application or determining the application in chambers on consent shall consider whether the 15 day period mentioned in subsection (7) is reasonable in the circumstances, and whether the efficient administration of justice would benefit if this period were to be extended.

Contents of Transcripts for Conviction Appeals
  • (13) Unless otherwise ordered by a judge in accordance with rule 2.01, there shall be omitted from all transcripts of evidence:

    • (a) all opening remarks by the prosecutor;

    • (b) all argument on pre-trial motions or applications made at trial, excepting a notation that an application or motion was made (the ruling of the summary conviction court shall be transcribed), unless a ground of appeal to be argued relates to the pre-trial motion or application, in which case the transcript of the argument must be included in the transcript;

    • (c) all objections to the admissibility of evidence, excepting a notation that the objection was made (the ruling of the summary conviction court shall be transcribed), unless a ground of appeal to be argued relates to the ruling on the admissibility of evidence, in which case the transcript of the argument must be included in the transcript; and,

    • (d) the closing argument of the parties, their agent(s) or counsel unless a ground of appeal involves the reasons for judgment including, but not limited to grounds alleging an unreasonable verdict, misapprehension of evidence, a failure to properly apply the judgment in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.), a failure to consider relevant evidence and the inadequacy of the reasons given.

Additional Portions of Transcript
  • (14) An order for the inclusion in the transcript of any portion of the proceedings referred to in subrule (13) may be made without the attendance of counsel of record, upon filing the written consent of counsel of record for all parties.

  • (15) Any order for the inclusion in the transcript of any portion of the proceedings referred to in subrule (13) shall be sent to the court reporter within 5 days of the order having been granted, and a copy of the order shall be provided to the counsel of record for all parties, together with confirmation that the order has been sent to the court reporter.

  • (16) Everything that occurred following a finding of guilt shall be transcribed for use on the hearing of the appeal whether the appeal is against the finding of guilt or conviction and sentence or is against the sentence only.

Contents of Transcripts for Appeals against Sentence
  • (17) With respect to appeals as to sentence only:

    • (a) where there was a plea of guilty at the opening of trial before any evidence was taken, the transcript shall include the entire proceedings before the court, including the statement of the prosecutor, any evidence as to the facts, any submissions of the prosecutor for the Crown or the counsel for defence, and the reasons of the summary conviction court as to sentence;

    • (b) where the original plea was one of not guilty, and was followed by the adducing of evidence, unless otherwise ordered by a judge, the parties shall make every effort to agree on a statement of facts in accordance with subrule (6) or (7) as the case may be. Where the appellant cannot comply with the time limits set out in subrule (6) or (7) as the case may be, the appellant may seek an extension of the time pursuant to rule 3.02; and

    • (c) in the event of difficulty in settling the statement of facts, counsel for either party may, on notice, attend upon a judge in chambers for assistance. In the event of a failure to agree as to the facts, the provisions of subrules (1) and (10) to (12) apply.

Completion of Transcripts
  • (18) Upon signing a certificate, each court reporter shall proceed with reasonable diligence to prepare and certify the transcript. All transcripts shall be prepared no longer than 90 days after the date the transcript was ordered.

  • (19) If the transcript has not been completed within 90 days from the date the transcript was ordered, the court reporter shall notify the parties to the appeal and the clerk of the appeal court, in writing, of the reason for the delay, and the date upon which the transcript will be prepared forthwith.

  • (20) Upon completion of the transcript, the court reporter shall forthwith notify the parties to the appeal and the clerk of the appeal court, in writing, that the transcript has been completed, by filing a Certificate in Form 2D, which shall include the date(s) to which the transcript relates.

  • (21) The Appellant shall serve on the respondent and all other parties to the appeal, and file together with proof thereof, a copy of the transcript within 30 days of receipt of a Certificate in Form 2D from each court reporter responsible for preparing a portion of the transcript.

  • (22) Unless an appeal has been wholly abandoned, after a transcript has been ordered, the completion of the transcript shall not be suspended nor the order countermanded except pursuant to an order of a judge made in accordance with rule 2.01.

Costs Sanction for Unnecessary Evidence
  • (23) In considering whether to award costs on an appeal under section 826 or subsection 834(1) of the Code, a judge may consider whether evidence has been transcribed or exhibits reproduced unnecessarily.

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