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
(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.
(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
40.14 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
40.15 (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
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.
(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
40.17 (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
40.18 (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
40.19 (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
(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.
- Date modified: