The Court of Appeal of Alberta Criminal Appeal Rules (SI/2018-34)

DIVISION 5Applications

Marginal note:Bringing applications

• 16.23 (1) Subject to subrule 16.4(2), the applicant must

  • (a) for an application to a single appeal judge, at least 10 days before the application is scheduled to be heard file 3 copies of an application and the other material required by subrule (2),

  • (b) for an application to a panel of the Court, at least 20 days before the application is scheduled to be heard file 5 copies of an application and the other material required by subrule (2), and

  • (c) within those same times, file and serve one additional copy of the application and other materials on every other party to the appeal.

• (2) Subject to rule 16.24 [Application for permission to appeal], the applicant must file and serve

  • (a) an application in Form CRA-F that must

    • (i) state briefly the grounds for the application,

    • (ii) identify the material or evidence intended to be relied on,

    • (iii) refer precisely to any applicable provision of an enactment or rule, and

    • (iv) state the remedy sought,

  • (b) any accompanying affidavit, if required,

  • (c) other material to be relied on, even if previously filed, and

  • (d) a memorandum of argument prepared in compliance with subrule 16.23(4).

• (3) The respondent to an application

  • (a) to a single appeal judge must, at least 5 days before the application is scheduled to be heard, file

    • (i) 3 copies of a reply memorandum of argument and any accompanying affidavit (if required) and any other materials to be relied on, or

    • (ii) 3 copies of a letter indicating that no additional materials will be filed by the respondent.

  • (b) to a panel of the Court must, at least 10 days before the application is scheduled to be heard, file

    • (i) 5 copies of a reply memorandum of argument and any accompanying affidavit (if required) and any other materials to be relied on, or

    • (ii) 5 copies of a letter indicating that no additional materials will be filed by the respondent,

    and

  • (c) must within those same times, file and serve one additional copy of those materials on every other party to the appeal.

• (4) Memoranda filed on an application must be formatted as required by rule 16.18(1)(a) and

  • (a) must not be longer than 10 pages on an application for permission to appeal and 5 pages for any other application, and

  • (b) may in addition attach a chronology, where that is relevant to the application.

• (5) A respondent who fails to respond to an application or who elects not to file a memorandum in response to an application may not present oral argument at the hearing of the application unless the single appeal judge or the panel of the Court otherwise permits.

• (6) Unless otherwise permitted,

  • (a) subject to paragraph (b), oral argument on an application, including a reply, before a single appeal judge or a panel of the Court may not exceed 15 minutes for each party to the application,

  • (b) oral argument on an application for permission to appeal, including a reply, may not exceed 30 minutes for each party to the application, and

  • (c) consolidated applications are to be treated as one application for the purpose of this rule.

  Information Note

  All of the materials should be filed simultaneously, unless the application must be filed first to preserve a time limit. If in urgent matters the applicant wishes to abridge the time limits, a case management officer should be consulted for directions.

Marginal note:Application for permission to appeal

• 16.24 (1) An application for permission to appeal must

  • (a) be in Form CRA-C and comply with rule 16.23 [Bringing applications],

  • (b) state the exact questions of law on which permission to appeal is requested, and

  • (c) include the written or transcribed reasons of the Provincial Court of Alberta and the Court of Queen’s Bench of Alberta.

• (2) Subject to any enactment, no appeal lies from an order of a single appeal judge granting or denying permission to appeal.

• (3) An application for permission to appeal that has not been heard within 6 months from the date of the filing of the application is deemed to have been abandoned unless a case management officer otherwise directs.

Marginal note:Judicial interim release

• 16.25 (1) An application for judicial interim release may not be brought until

  • (a) a notice of appeal or an application for permission to appeal has been filed, and

  • (b) the Appeal Record has been ordered, or counsel undertakes to order the Appeal Record within 10 days of the hearing of the application.

• (2) An application for judicial interim release in an appeal against sentence only is deemed to include an application for permission to appeal sentence.

• (3) Unless otherwise ordered, an application for judicial interim release pending appeal must be based on an affidavit of the applicant deposing to any facts relevant and material to the application, which must include:

  • (a) particulars of the applicant’s criminal record and any pending criminal charges, including any pending criminal charges outside Canada, and

  • (b) an undertaking to surrender into custody in accordance with the terms of any order granted.

• (4) Unless otherwise ordered, an order granting judicial interim release must be in form CRA-G.

• (5) An appellant who is granted judicial interim release must diligently prosecute the appeal, must comply strictly with all appeal deadlines, and must keep the Registrar informed of any changes of address or contact information.

• (6) If an appellant is granted judicial interim release and the appeal is struck or abandoned a warrant for arrest may issue without further order.

  Information Note

  The affidavit in support of judicial interim release should generally disclose the prior and proposed place of residence and employment of the applicant, and any other information likely to be pertinent to the application.

Marginal note:Application to admit new evidence

• 16.26 (1) An application to admit new evidence must be filed and served prior to the filing of, and prior to the deadline for filing, the applicant’s factum.

• (2) In addition to the documents required by subrule 16.23(2), the applicant must file

  • (a) 5 copies of the proposed new evidence, and

  • (b) 5 envelopes large enough to contain a copy of the new evidence, marked “New Evidence” and with the appeal number and style of cause.

Marginal note:Application to reconsider a previous decision

16.27 An application to reconsider a previous decision of the Court must be filed and served and must be returnable prior to the filing of, and prior to the deadline for filing, the applicant’s factum.

Marginal note:Application to restore

16.28 An application to restore an appeal that has been struck or an application for permission to appeal that has been deemed abandoned must be filed, served and granted within 6 months after having been struck or deemed abandoned.

Marginal note:Summary determination of appeals

• 16.29 (1) The Registrar may refer to the Court for summary determination any appeal that

  • (a) does not show a substantial ground of appeal,

  • (b) appears to be frivolous or vexatious, or

  • (c) can be determined without a full hearing.

• (2) The Registrar may refer to a single appeal judge for summary determination any appeal that does not show a substantial ground of appeal, or that should have been filed with another court.

DIVISION 6General Rules

Marginal note:Presence at appeals

• 16.30 (1) Subject to subrule (2), an appellant or respondent in custody is entitled to be present at the hearing of the appeal.

• (2) An appellant who is in custody and who is represented by counsel is not entitled to be present on the hearing of any appeal on a question of law alone, or any application unless the right to be present is granted by an enactment, or a single appeal judge orders the appellant to be present.

• (3) A single appeal judge may order that an appellant or respondent who is entitled to be present at an application or appeal appear instead by means of a telecommunication device, closed-circuit television, or other suitable method of communication.

  Information Note

  Subject to the direction of a single appeal judge, the entitlement of an appellant who is in custody to be present at the hearing of the appeal is specified in section 688 of the Criminal Code.

Marginal note:Duties of counsel

• 16.31 (1) Counsel who are retained to represent a party in a criminal appeal must forthwith advise the Registrar in writing of

  • (a) counsel’s retainer or its termination,

  • (b) any intention to abandon the appeal, and

  • (c) any change in whether a party in custody is or is not to be present in court for any application or appeal.

• (2) A lawyer of record in a criminal appeal must apply to a single appeal judge, on notice to the client and the Attorney General, for permission to withdraw from the record unless a Notice of Change of Representation in Form CRA-H is filed by another lawyer.

• (3) A lawyer of record in a criminal appeal who is given permission to withdraw from the record shall within 10 days after permission was granted file with the Registrar and serve on the Attorney General a statement setting out an address for service or the last known address and contact information of the client.

Marginal note:Abandonment of appeals

16.32 An appellant may abandon the appeal by filing and serving a Notice of Abandonment in Form CRA-I.

Marginal note:Restoring criminal appeals

• 16.33 (1) An appeal that has been struck or an application for permission to appeal that has been deemed to have been abandoned may be restored with the filed written consent of the parties, or by order of a single appeal judge granted under rule 16.28 [Application to restore], but no fee is payable for restoring a criminal appeal.

• (2) An order or written consent restoring an appeal must set deadlines and directions for the filing of any outstanding materials, and if the appellant fails to comply with any of those deadlines or directions, the appeal is deemed to have been struck again.

Marginal note:New trials

16.34 Unless otherwise ordered, where the Court orders a new trial

• (a) the presiding judge is deemed to have directed that the person charged is remanded to appear at the next sitting of the court appealed from that has jurisdiction in the case, and

• (b) if the person charged was on judicial interim release at the time of the judgment of the Court, the order for judicial interim release is deemed to be continued until the person charged reappears in the trial court.

Marginal note:Scope of sentence appeals

16.35 In any sentence appeal the Court on its own motion may treat the whole matter of sentence as open to variation, but if the Court intends to vary a sentence pursuant to this rule, notice and an opportunity to be heard must be provided to the parties.

Marginal note:Judgment in appeals

• 16.36 (1) Unless otherwise directed, a formal judgment is not required in a criminal appeal unless an appeal to the Supreme Court of Canada is filed, applied for or contemplated.

• (2) Where a judge of the Court dissents from the decision of the Court on a point of law, any judgment of the Court that is prepared must specify the grounds on which the dissent is based.

• (3) Unless otherwise directed, where the Attorney General prepares a formal order or judgment resulting from an application or appeal, and the other party is self- represented, the approval of the other party is not required.

Marginal note:Requirements for all documents

• 16.37 (1) All materials prepared for an appeal must

  • (a) be succinct, legible and divided into a single series of consecutively numbered paragraphs,

  • (b) include the names of the parties in a style of cause in Form CRA-J,

    • (i) as set out in the notice of appeal, unless amended,

    • (ii) listed in the same order in which they were listed in the style of cause in the court appealed from, and

    • (iii) showing the status of the party in the appeal and in the court appealed from,

  • (c) identify the nature of the material, the name of the party filing it, and that party’s status on the appeal,

  • (d) provide an address for service,

  • (e) provide the name, address and contact information of the person who prepared the material,

  • (f) be divided into volumes of approximately 200 pages each, provided that if the Book of Authorities or Extracts of Key Evidence do not exceed 30 pages, they may be included as an appendix to the factum or combined together, and

  • (g) be 8.5″ x 11″ in size.

• (2) The Appeal Record, factums, Extracts of Key Evidence and Books of Authorities must have a cover page in Form CRA-K that includes the name of the Court, the location of the office of the Registrar of the Court and the appeal number assigned by the Registrar.

Coming into Force

16.38 These Rules come into force and

• (a) the Bail Rules – Appellate Division of Alberta, (1972) C Gaz I, 2898-9, and

• (b) the Rules of the Appellate Division of the Supreme Court of Alberta as to Criminal Appeals, SI/77-174, (1977) C Gaz II, 4270 are repealed on August 1, 2018.