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Prince Edward Island – Criminal Appeal Rules of Court (SI/2011-109)

Regulations are current to 2024-03-06 and last amended on 2014-06-23. Previous Versions

Exhibits

  •  (1) Subject to subsections (2) to (6), all documents, exhibits and things connected with a trial shall be retained by the trial judge or by the clerk of the trial court for ninety (90) days after sentence or acquittal, as the case may be.

  • (2) At any time after a trial, the trial judge or another judge may make such order as to the custody or conditional release of any document, exhibit or thing as the special circumstances of the case may require.

  • (3) Upon the filing of written consents by the accused or his or her counsel, and by the Attorney General or his or her counsel, the trial judge or the clerk of the trial court shall deliver any document, exhibit or thing in accordance with such consents.

  • (4) Upon receipt of a copy of a notice of appeal, the trial judge or the clerk of the trial court shall forward to the registrar all documents, exhibits and things connected with the proceedings at the trial, other than such as may already have been released pursuant to subsections (2) and (3).

  • (5) Upon the expiry of the period referred to in subsection (1) and if no appeal is filed or, when an appeal is abandoned, the registrar shall return the exhibits to the clerk of the trial court.

  • (6) Nothing in this rule affects the provisions of any Act relating to exhibits or things seized or forfeited.

Appeal Book

  •  (1) Subject to subsection (3), the appellant shall prepare an appeal book which shall contain, where applicable, in the following order:

    • (a) an index;

    • (b) a copy of the notice of appeal and notice of cross-appeal;

    • (c) a copy of any order respecting the conduct of the appeal;

    • (d) a copy of the information or indictment;

    • (e) a copy of any decision or order of the trial court that is the subject of the appeal or related to it and which is not included in the transcript;

    • (f) a copy of any agreed statement of facts entered at the trial or agreed to under this Rule;

    • (g) any agreement to limit the contents of the transcript or the appeal book;

    • (h) a list of all exhibits;

    • (i) a copy of each documentary exhibit or electronic information entered into evidence, indexed and numbered as at the trial, including affidavits and written admissions; and

    • (j) any other item that was before the trial court which the appellant deems necessary for the appeal.

  • (2) In the case of an appeal against sentence, in addition to the items mentioned in subsection (1) there shall be filed

    • (a) a copy of any pre-sentence report and victim impact statement;

    • (b) a copy of any restitution, probation or conditional sentence order or any other order that is the subject of the appeal;

    • (c) a copy of the offender’s criminal record if one is entered at the trial;

    • (d) any medical or psychiatric reports filed at the time of sentence; and

    • (e) a copy of any exhibits entered at the sentencing and not at the trial.

  • (3) Where the appeal is a prisoner appeal, the Attorney General shall, unless otherwise ordered by the Court, prepare the appeal book required under this section and shall forward a copy of it to the appellant free of charge.

  • (4) The respondent may file an appeal book.

  • (5) The parties to an appeal may agree in writing to omit from the appeal book anything the parties consider unnecessary to an appeal.

  • (6) A judge may order that a party may omit anything from an appeal book.

  • (7) The Registrar may refuse to accept an appeal book that does not comply with these Rules or that is not legible.

Factums

Appellant’s Factum

  •  (1) An appellant shall prepare an appellant’s factum unless

    • (a) the appellant is not represented by counsel and has stated in the notice of appeal that he or she desires to present oral argument only; or

    • (b) the Court orders otherwise.

  • (2) The appellant’s factum shall be signed by the appellant, the appellant’s counsel, or on counsel’s behalf by someone he or she has specifically authorized, and shall consist of

    • (a) Part I, containing a concise summary of the facts relevant to the issues in the appeal, including identification of the trial court and the result in the trial court, with reference to the evidence by page and line of the transcription;

    • (b) Part II, containing a concise statement setting out clearly and particularly the points in issue in the appeal;

    • (c) Part III, containing a concise statement of the argument, law and authorities relied on;

    • (d) Part IV, containing a statement of the order that the Court will be asked to make; and

    • (e) Schedule A, containing a list of the authorities relied on; and

    • (f) Schedule B, containing

      • (i) an index,

      • (ii) the headnote and the relevant portions of the text, or the complete text if most of the text is relevant to the issues in the appeal, of the authorities relied on, and

      • (iii) all relevant provisions of statutes, regulations and by-laws, with each authority.

Respondent’s Factum

  •  (1) The respondent shall prepare a respondent’s factum unless

    • (a) the respondent is not represented by counsel and has given notice that he or she desires to present oral argument only; or

    • (b) the Court orders otherwise.

  • (2) The respondent’s factum shall be signed by the respondent, the respondent’s counsel, or on counsel’s behalf by someone he or she has specifically authorized, and shall consist of

    • (a) Part I, containing a statement of the facts in the appellant’s summary of relevant facts that the respondent accepts as correct and those facts with which the respondent disagrees and a concise summary of any additional facts relied on, with such reference to the evidence by page and line of the transcript as is necessary;

    • (b) Part II, containing the position of the respondent with respect to each issue raised by the appellant, immediately followed by a concise statement of the law and the authorities relating to that issue;

    • (c) Part III, containing a statement of any additional issues raised by the respondent, the statement of each issue to be immediately followed by a concise statement of the law and the authorities relating to that issue;

    • (d) Part IV, containing a statement of the order that the Court will be asked to make;

    • (e) Schedule A, containing a list of the authorities relied on; and

    • (f) Schedule B, containing

      • (i) an index,

      • (ii) the headnote and the relevant portions of the text, or the complete text if most of the text is relevant to the issues in the appeal, of the authorities relied on, and

      • (iii) all relevant provisions of statutes, regulations and by-laws.

Perfecting Appeals

  •  (1) Subject to subsection (2), within 30 days after being notified that the evidence has been transcribed or, if no evidence is to be transcribed, within 30 days after the issue of the notice of appeal, an appellant shall serve on each party a copy of the appeal book, and a copy of the appellant’s factum, if one is required, and file with the Registrar

    • (a) if the notice of appeal was served under subsection 82.05(4), the original notice of appeal with proof of service;

    • (b) four copies of the appeal book,

    • (c) four copies of the appellant’s factum, if one is required, and

    • (d) a certificate that service has been made under paragraphs (a) and (b) where applicable.

  • (2) Where the appeal is a prisoner appeal, within the time prescribed by subsection (1)

    • (a) the Attorney General shall file with the registrar four copies of the appeal book,

    • (b) the appellant shall file with the Registrar five copies of the appellant’s factum, if one is required, and

    • (c) the registrar shall forward to the respondent a copy of the appellant’s factum, if any.

  • (3) Within 30 days after service of the appellant’s factum, the respondent shall

    • (a) file with the registrar four copies of the respondent’s factum, if one is required; and

    • (b) serve on each party a copy of the respondent’s factum, if one is required.

  • (4) When subsection (1) or (2) is complied with, the appeal is perfected and the Registrar, under the direction of the Chief Justice, may, as appeals are perfected, set times for the hearing thereof and in so doing shall have regard as much as possible to advice from the parties or their counsel as to the probable length of the hearing and convenient dates thereof.

Hearing of Appeals

  •  (1) The Registrar shall give each party notice of the time set for the hearing of an appeal under subsection 82.14(4).

  • (2) The Registrar shall file a certificate in Form 82F indicating that each of the parties has been notified as required by subsection (1) and such certificate shall be prima facie evidence that such notice has been received by the parties.

  • (3) On the hearing of an appeal the appellant and the respondent shall be restricted in their argument to the grounds set out in their respective notices of appeal and factums unless leave of the court is obtained to argue matters not set out in their grounds of appeal or factums.

  • (4) On application by any party to an appeal, the Court or a judge, may, in special circumstances, order an early hearing of an appeal and may give any necessary directions.

Abandonment of Appeals

  •  (1) An appellant who wishes to abandon an appeal may, before the hearing of the appeal

    • (a) serve on the respondent a notice of abandonment in Form 82G, and

    • (b) file with the Registrar the notice with proof of service.

  • (2) A notice of abandonment may be signed by the appellant or his or her counsel but if it is signed by the appellant, his or her signature shall be verified by affidavit or witnessed by a solicitor or by an officer of the penal institution in which the appellant is confined.

  • (3) An abandoned appeal shall be deemed to be dismissed without any formal order being necessary but the respondent may apply, without notice, to the Court or a judge for a formal order dismissing the appeal.

  • (4) Notwithstanding subsection 82.16(3), a judge may at any time, on notice of motion, grant leave to withdraw a notice of abandonment if it is in the interest of justice to do so.

Timing with Respect to Interlocutory Applications

  •  (1) Any party may seek from the Registrar a date and time for the hearing of an interlocutory application. When the date and time are set, the applicant shall serve copies of the documentation to be relied on, on all other parties at least four clear days before the hearing, unless the application is made by consent or the Court orders otherwise.

  • (2) Any written response to the application shall be filed with the Registrar and served on all other parties at least one clear day before the hearing.

  • SI/2014-62, s. 1

Applications for Disclosure, Production of Third Party Records and Fresh Evidence

  •  (1) In seeking to obtain disclosure, the production of third party records and to adduce fresh evidence on appeal and pursuant to the applicable provisions of the Code, the applicant shall file and serve a notice of motion, which shall concisely set out the nature of the disclosure, the third party records being sought and/or the evidence sought to be adduced and the manner in which such evidence is said to bear on a decisive or potentially decisive issue at trial.

  • (2) The notice of motion shall

    • (a) be supported by affidavit(s) as to the facts raised and to be relied on in support of the application;

    • (b) set out the order sought; and

    • (c) be accompanied by a memorandum of the points of argument and a list of authorities relied on.

  • (3) A party opposing the application shall file with the Registrar any affidavit or memorandum on which that party relies and serve a copy of it on the applicant and on any other parties. The memorandum shall contain the points of argument and a list of authorities relied on.

  • (4) Motions for disclosure and the production of third party records shall be made to the panel hearing the appeal, and they shall be scheduled at a time prior to the panel hearing argument on the merits of the appeal.

  • (5) Unless otherwise ordered, a motion to adduce fresh evidence shall be made to the panel hearing the appeal and at the same time as the argument of the appeal on its merits.

  • (6) Either prior to or after ruling on the admissibility of the proposed fresh evidence, the Court may, of its own motion or that of counsel, order that the evidence be taken by oral examination before the Court, by affidavit, by commission evidence, by deposition or in any other manner that the Court directs.

Application for Assignment of Counsel Under Section 684 of the Criminal Code

  •  (1) An application by an appellant or a respondent for the assignment of counsel under section 684 of the Code shall be made by filing the original and two copies of a Notice of Motion for Assignment of Counsel in Form 82H, together with an affidavit of the appellant or respondent in Form 82I.

  • (2) The Registrar shall provide a copy of the Notice of Motion and the affidavit to the Attorney General and the Office of Legal Aid.

Release from Custody Pending Appeal

  •  (1) An application, under section 679 of the Code, for release from custody pending appeal shall be made by notice of motion.

  • (2) An application for release pending appeal shall not be heard unless the appellant has filed a notice of appeal as well as a request for transcript and certificate in Form 82C.

  • (3) Where the appeal is from sentence only, a judge shall determine the application for leave to appeal the sentence before determining the application for release pending appeal.

  • (4) The application shall be accompanied by an affidavit or affidavits, including where practicable an affidavit of the appellant, setting forth

    • (a) the particulars respecting the conviction and sentence;

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

    • (c) the applicant’s

      • (i) age, marital status and dependents, if any,

      • (ii) places of residence in the three years preceding conviction,

      • (iii) proposed place of residence if released,

      • (iv) employment prior to conviction and expected employment and address of employment if released, and

      • (v) criminal record, if any; and

    • (d) where the appeal is from sentence only, any unnecessary hardship that would be caused if the appellant were detained in custody.

  • (5) Where the Attorney General desires to assert that the detention of the applicant is necessary in the public interest and to rely on material other than that contained in the material filed by the applicant, the Attorney General shall file an affidavit setting out the facts on which the Attorney General relies.

  • (6) The applicant and the Attorney General may, with leave of the Court, cross-examine on affidavits filed by the opposite party.

  • (7) A judge may dispense with the filing of the affidavits referred to in this Rule and act on a statement of facts agreed on by the appellant and the Attorney General.

  • (8) The applicant shall file a concise memorandum of fact and law and any portions of the transcript of the trial or hearing that may be required, in support of the requirements stipulated by section 679 of the Code for release pending the appeal and, if applicable, in support of the argument that the appeal or application for leave to appeal is not frivolous. The Attorney General shall file a memorandum in reply.

  • (9) When granting an application for release, the judge may make a separate order requiring the applicant to file his or her factum within a specified time period after receipt of the transcript by the Registrar, or after release is granted, if the transcript has been filed. The factum shall not be filed after the time specified except with the leave of the Chief Justice or the Court.

  • (10) Unless otherwise ordered by the judge hearing the application, all orders for release from custody pending appeal shall contain the following conditions:

    • (a) that the appellant will surrender into custody at the courthouse or at such other place as may be specified in the order, on the day of the hearing of the appeal or such other day as may be specified in the order;

    • (b) that the appellant acknowledges that failure to surrender into custody in accordance with the terms of the order will be deemed to constitute an abandonment of the appeal;

    • (c) that the appeal will be pursued with all due diligence;

    • (d) that the appellant will keep the peace and be of good behaviour;

    • (e) that the appellant will advise the Registrar of his or her place of residence.

  • (11) Where release pending appeal is granted, the appellant shall prepare and file with the Registrar the order for judicial interim release, any recognizance or undertaking, which may take the form provided in the Code or the Youth Criminal Justice Act and a notice of release from custody in Form 82J.

  • (12) Where release is granted in a prisoner appeal, the Attorney General shall prepare the documentation required under subsection (10).

 

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