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Criminal Procedure Rules of the Supreme Court of the Northwest Territories (SI/98-78)

Regulations are current to 2024-03-06

PART 16Extraordinary Remedies (continued)

Marginal note:Ex parte order

 Where a judge considers it necessary, the judge, on an application made ex parte, may grant an order for the immediate issue of an order in the nature of habeas corpus.

Marginal note:Application - prohibition

 An application for an order in the nature of prohibition shall not operate as a stay of the proceedings sought to be prohibited except by order of a judge.

PART 17Summary Conviction Appeals

Marginal note:Definitions

 The definitions in this section apply in this Part, unless the context in these Rules requires otherwise.

adjudication

adjudication includes

  • (a) in an appeal under subparagraph 813(a)(i) or (ii) of the Code, a conviction or order made against or a sentence passed against a defendant;

  • (b) in an appeal under subparagraph 813(b)(i) or (ii) of the Code, an order that stays proceedings on or dismisses an information or a sentence passed against a defendant;

  • (c) in an appeal under subparagraph 813(a)(iii) or (b)(iii) of the Code, a verdict; and

  • (d) in an appeal under subsection 830(1) of the Code, a conviction, judgment or verdict of acquittal or other final order or determination of a summary conviction court. (décision)

appeal

appeal means an appeal under Part XXVII of the Code from or against an adjudication in a proceeding before a summary conviction court; (appel)

appeal court

appeal court means the Supreme Court of the Northwest Territories; (Cour d’appel)

appellant

appellant includes

  • (a) in an appeal under paragraph 813(a) of the Code, the defendant;

  • (b) in an appeal under paragraph 813(b) of the Code, the informant, the Attorney General or the Attorney General’s agent; and

  • (c) in an appeal under subsection 830(1) of the Code, the person who has filed the appeal. (appelant)

trial court

trial court means the summary conviction court from or against whose adjudication an appeal is being taken. (tribunal de première instance)

Marginal note:Application of Part

 This Part applies to all appeals, including appeals from summary conviction proceedings pursuant to the statutes of the Northwest Territories, except as otherwise provided by the Code, any other federal Act or any regulation made under the Code or any other such Act.

Marginal note:Time for filing notice of appeal

  •  (1) An appellant shall give notice of appeal

    • (a) where the appeal is from a conviction or against sentence or both, within 30 days after the day on which the sentence was passed; or

    • (b) in any other case, within 30 days after the day on which the adjudication under appeal was made.

  • (2) The appeal court or a judge of the appeal court may extend the time within which notice of appeal may be given.

  • (3) An application to extend time shall be made on notice to the respondent.

Marginal note:Contents of notice of appeal

  •  (1) A notice of appeal must be dated and signed by the appellant or the solicitor for the appellant and filed with the Clerk.

  • (2) The notice of appeal must set out the following:

    • (a) the trial court that made the conviction or order appealed from or passed the sentence appealed against;

    • (b) the conviction or order appealed from or the sentence appealed against, and the date of the conviction, order or sentence;

    • (c) the grounds on which the appeal is based;

    • (d) the nature of the order or other relief the appellant seeks;

    • (e) where the appellant is a person other than the prosecutor, a statement indicating whether or not the appellant desires to appear in person or by counsel on the hearing of the appeal; and

    • (f) the appellant’s address for service in the Northwest Territories.

  • (3) Where the prosecutor or informant appeals, the notice of appeal must be in Form 7 of the schedule.

  • (4) Where the accused appeals, the notice of appeal must be in Form 8 of the schedule.

  • (5) Notwithstanding subrules (2) and (4), where the appeal is commenced by the accused personally, the notice of appeal may be in Form 9 of the schedule, or in such other form as the court may allow.

Marginal note:Manner of service

  •  (1) Where the accused appeals, the notice of appeal shall be served, within the time limited by or under rule 110, on the respondent by mailing or delivering a copy of the notice of appeal to the office of the prosecutor who had carriage of the summary conviction proceeding.

  • (2) Where the prosecutor or informant appeals, the notice of appeal shall be served, within the time limited by or under rule 110, on the accused personally, or on such other person or in such manner as a judge may direct, and proof of service shall be filed with the Clerk not later than 10 days after the last day for service of the notice of appeal.

Marginal note:Compliance with section 817 of the Code

 Where an informant who does not represent or act on behalf of the Attorney General appeals, the appellant shall, forthwith after serving the notice of appeal, take steps to appear before a justice, on notice to the respondent, so as to comply with subsection 817(1) of the Code.

Marginal note:Compliance with section 821 of the Code

  •  (1) The Clerk shall, forthwith after the filing of the notice of appeal, comply with subsection 821(1) of the Code by delivering a copy of the notice of appeal or sending a copy of it by prepaid mail to the trial court.

  • (2) The trial court shall, within 10 days after receipt of the notice of appeal, transmit to the Clerk the material referred to in subsection 821(1) of the Code.

Marginal note:Transcript of evidence

  •  (1) Where the evidence before the trial court has been taken by a stenographer or by a sound recording apparatus, the appellant shall cause a copy of the transcript of the evidence to be furnished to the appeal court and the respondent for use on the appeal.

  • (2) The provision of a transcript may be waived by order of the appeal court.

  • (3) Notwithstanding subrules (1) and (2), where a transcript of evidence cannot be furnished, the appellant shall file, with the notice of appeal, a certificate to that effect signed by the court reporter assigned to transcribe the evidence or issued by the trial court appealed from.

Marginal note:Contents of transcript

  •  (1) In preparing a transcript of evidence that has been ordered for the purposes of appeal, the court reporter shall include the reasons for judgment or sentence.

  • (2) Where the appeal is from sentence only, the appellant need not cause a copy of the transcript of the evidence to be furnished to the appeal court unless the appeal court otherwise orders.

  • (3) On application, a judge may give special directions as to the omission of part of the transcript.

  • (4) In an appeal where the facts are not in dispute, an agreed statement of facts may take the place of the transcript of evidence and the appellant need only file and serve a transcript of the reasons for judgment and sentence.

Marginal note:Time and place of appeal

  •  (1) No time or place for the hearing of the appeal need be stated in the notice of appeal.

  • (2) When the appeal court has received the material required to be transmitted by the trial court pursuant to subsection 821(1) of the Code and a transcript of the evidence or when four months has elapsed since a notice of appeal was filed, whichever first occurs, the Clerk shall enter the appeal on a general criminal list to be spoken to.

  • (3) The general criminal list shall be called by a judge in chambers at a time and place specified in advance by the appeal court.

  • (4) Counsel for each party, or their agents, shall appear at the time and place specified by the appeal court under subrule (3) and shall be fully instructed so as to speak to the progress of the appeal.

  • (5) Where counsel for each party concur in a written request, an appeal may be set for hearing by the Clerk in accordance with the usual practice of the appeal court.

  • (6) At any time after four months from the day on which a notice of appeal was filed, the appeal court may, on the application of a party or on its own motion, dismiss the appeal for want of prosecution.

Marginal note:Factum of appellant

 The appellant shall, not less than 14 days before the day fixed for the hearing of the appeal, file with the Clerk and serve on the respondent a factum containing the following:

  • (a) a succinct outline of the argument the appellant intends to make with particular reference to the evidence to be discussed in relation to the grounds of appeal;

  • (b) a concise statement of the principles of law that are relied on;

  • (c) a copy of relevant statutory provisions and case authorities; and

  • (d) the relief or order sought.

Marginal note:Factum of respondent

 The respondent shall, not less than seven days before the date set for the hearing of the appeal, file with the Clerk and serve on the appellant a factum containing, on behalf of the respondent, the succinct outline of the argument, statements and copies referred to in subrules 118(a) to (d).

Marginal note:Where party does not wish to appear

 A party who does not wish to be present on the hearing of the appeal, either in person or by counsel, shall file with the appeal court, before the day fixed for the hearing, a document

  • (a) stating that he or she does not wish to be present on the hearing; and

  • (b) setting out his or her argument on appeal.

Marginal note:Failure to appear, file factum

  •  (1) The appeal court may dismiss an appeal for want of prosecution where the appellant fails

    • (a) to appear personally or by counsel on the day fixed for the hearing; or

    • (b) to file a factum.

  • (2) Where a respondent fails to file a factum or to appear personally or by counsel on the day fixed for the hearing, the appeal court may proceed with the appeal in the absence of the respondent.

Marginal note:Abandoning appeal

  •  (1) An appellant who wishes to abandon the appeal shall forthwith file with the appeal court a notice of abandonment in Form 2 of the schedule that is

    • (a) signed by the solicitor of record for the appellant; or

    • (b) signed by the appellant personally, and

      • (i) accompanied by an affidavit of execution verifying the signature, or

      • (ii) witnessed by an officer of the institution in which the appellant may be confined.

  • (2) On the filing of a notice of abandonment, the Clerk shall forthwith cause a copy of the notice to be delivered to the respondent by prepaid mail at the address for service for the respondent that is on file with the appeal court or in such other manner as a judge may order.

  • (3) On compliance with subrules (1) and (2), the appeal court may dismiss the appeal as an abandoned appeal without the attendance of the parties or their counsel.

Marginal note:Application for trial de novo

  •  (1) An application under subsection 822(4) of the Code for a trial de novo shall be made by notice of motion in Form 1 of the schedule before a date for the hearing of the appeal has been fixed.

  • (2) Not less than seven days notice of an application referred to in subrule (1) shall be given to the opposite party in the manner specified in rule 112.

  • (3) Where an appellant entered a guilty plea before the trial court and is appealing the conviction, the appeal court may direct a hearing on the preliminary point as to whether or not the appellant may withdraw the guilty plea, and the court hearing that point may, if it decides in favour of the appellant, give such directions as it considers just.

Marginal note:Delivery of results of appeal to trial court

 Immediately after the disposition of an appeal, the Clerk shall cause to be delivered to the trial court the results of the appeal including any written reasons or endorsements made by the judge.

Marginal note:Prisoner appeals

  •  (1) The Clerk shall provide a sufficient number of copies of this Part to each warden of a correctional centre in the Northwest Territories and each warden shall keep the copies provided and furnish a copy of this Part to any inmate of the correctional centre who asks for one.

  • (2) Where notice of appeal is filed by an inmate of a correctional centre in the Northwest Territories personally, the Clerk shall immediately forward a copy of the notice to the director of the local legal aid programme and inquire as to whether counsel has been appointed on behalf of the appellant for the purpose of presenting an appeal.

  • (3) After the expiry of four months from the day the notice of appeal was filed by an inmate in a correctional centre, if no further steps have been taken to prepare the appeal for hearing, the Clerk shall write to the appellant, at the address given in the notice of appeal, directing the appellant to advise in writing, within a specified period, whether he or she wishes to pursue the appeal.

  • (4) Where the Clerk does not receive a response from an appellant under subrule (3) within the period specified or receives a response advising that the appellant does not wish to pursue the appeal, the appeal court may dismiss the appeal as an abandoned appeal.

  • (5) On the determination of a hearing date for an appeal filed by an inmate of a correctional centre personally, the Clerk shall send notice of the date in writing to the appellant at the address given in the notice of appeal.

Marginal note:Costs

 The costs of all proceedings on a summary conviction appeal, whether for or against the Crown as appellant or respondent, are in the discretion of the appeal court.

PART 18Change of Representation

Marginal note:Notice of change

 A solicitor who assumes the representation of an accused who was previously either unrepresented or represented by another solicitor shall immediately file a notice to that effect with the Court and serve a copy of the notice on the prosecutor.

Marginal note:Removal of solicitor from record

  •  (1) A solicitor of record for an accused shall act as and remain the solicitor for his or her client until an order removing the solicitor from the record has been made by a judge or a new solicitor has filed a notice pursuant to rule 127.

  • (2) An order removing a solicitor from the record may be made on the application of the solicitor on notice to his or her client and to the prosecutor.

  • (3) Notice on the client of an application under subrule (2) may be served by mail addressed to the client at his or her last known address.

  • (4) A copy of the order removing a solicitor from the record shall be served by the solicitor on the client by mail addressed to the client at his or her last known address.

  • (5) This rule applies whether the solicitor decides to cease acting on behalf of a client or the client terminates the solicitor’s retainer.

 

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