Part IV: Summary Conviction Appeals and Extraordinary Remedies [Rules 40-49] (continued)
Rule 42: Release from Custody Pending Appeal[Code ss. 816 & 832(1)] (continued)
Service of Notice
42.04 (1) Service of the notice of application and of the supporting materials required by subrule 42.03(1) shall be made upon the respondent, in accordance with rule 5, at least 2 clear days prior to the date fixed for the hearing of the application.
Filing with Proof of Service
(2) The notice of application and supporting materials, together with proof of service thereof, shall be filed in the office of the clerk of the appeal court in the place where the application is to be heard, at least 2 clear days before the date fixed for the hearing of the application.
Consent to Abridgment or Extension of Time
(3) Any time prescribed by this rule for serving or filing the notice of application or supporting materials may be abridged or extended by consent in writing endorsed on the relevant document by the party served.
Order Directing Release
Form of Order
Sufficiency of Order
(2) An order in Form 10 shall be sufficient authority for a justice of the peace to prepare the necessary undertaking or recognizance when satisfied that any condition precedent thereto has been met.
Consent in Writing
(3) The respondent may consent in writing to the order sought, upon terms included in a draft order in Form 10A, and a judge may grant such order without the attendance of counsel.
Conditions of Release
(4) Unless otherwise ordered by the judge hearing the application, every order for release from custody pending appeal shall contain the conditions:
(a) that the appellant will surrender into custody at the institution from which he or she is released, or such other institution as may be specified in the order, by 6:00 p.m. on the day prior to the hearing of the appeal or such other day as is 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, and,
(e) that the appellant will advise the clerk of the appeal court of his or her place of residence.
Expiration of Release Orders
(5) Unless otherwise ordered by the judge hearing the application, an order directing the release of the appellant from custody pending appeal shall contain a date when the order will expire that is not more than 9 months from the date of the order.
Variation of Bail
(6) A judge may, on cause being shown, cancel an order previously made under section 816 of the Code and may make any order that could have been made under that section.
Order May be Made without Attendance of Counsel
(7) An order for a new recognizance or undertaking varying a condition may be made by a judge without the attendance of counsel, upon filing the written consent of counsel for the respondent.
Content of Material to be Filed
(8) Where the appellant seeks an order under subrule (6) which varies the condition referred to in paragraph (4)(a), the material filed in support of the application shall contain a summary of the status of the appeal, an explanation for any failure to comply with the rules and, where applicable, the earliest feasible date on which the appeal may be heard.
- SI/2014-5, s. 28
Rule 43 Extraordinary Remedies[Code, s. 774 ff.]
Application of the Rule
43.01 This rule applies to applications in criminal matters by way of certiorari, habeas corpus, mandamus, procedendo and prohibition, including applications to quash a subpoena, warrant, conviction, inquisition or other order or determination and applications for discharge of a person in custody.
To Whom Application Made
43.02 Applications made under rule 43.01 shall be made to a judge of the court in the region, county or district in which the proceedings to which the application relates have been, are being or are to be taken.
Contents of Notice
43.03 (1) A notice of application under this rule shall be in Form 1 and comply with rule 6.03 and shall also state the subpoena, warrant or other order or determination to which the application relates.
Applications to Quash
(2) Where an applicant seeks to quash a warrant, conviction, order or determination, other than a subpoena or warrant to compel the attendance of a witness, there shall be endorsed upon the notice of application a notice in the following form addressed to the Court Services Manager or coroner or as the case may be:
By virtue of subrule 43.03(3) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), you are, upon receiving this notice, to return forthwith to the Clerk’s Office at true copies of the conviction (or as the case may be) herein referred to, together with true copies of the indictment, information, exhibits and papers or other documents touching the matter, as fully and as entirely as they remain in your custody, together with this notice and the certificate prescribed in the said rule.
Dated this day of , 2
Solicitor for the Applicant
Court Services Manager at
(or coroner, or as the case may be)
Return to Clerk
(3) Upon receipt of the notice of application endorsed under subrule (2), the Court Services Manager or coroner, as the case may be, shall forthwith return to the Clerk’s Office at the place where the application is returnable true copies of the conviction, order, or warrant, together with true copies of the indictment, information, exhibits and any other proceedings or documents touching the matter, and the notice served upon him or her with a certificate attached thereto in the following form:
Pursuant to the accompanying notice I herewith return to this Honourable Court the following:
True copies of:
1 the information;
2 the conviction (or as the case may be);
3 the exhibits, if capable of reproduction and relevant to the matters in question;
4 any other papers or documents touching the matter, if capable of reproduction and relevant to the matters in question.
And I hereby certify to this Honourable Court that I have above truly set forth all exhibits, papers and documents in my custody or power relating to the matter set forth in the said notice of application.
Court Services Manager (or coroner, as the case may be)
Effect of Return
(4) Subject to subrules (5) and (6), the documents listed in the certificate under subrule (3), together with any transcript of the proceedings filed by the applicant, shall have the same effect in law as a return to a writ of certiorari.
(5) Subject to subrule (6), service of a notice of application to quash under subrule (2) upon a provincial court judge, justice or justices, coroner, or as the case may be, suspends the proceedings which are the subject of the application.
(6) A judge may, upon service of a notice of application therefor in such manner, if at all, as the judge may direct, order that the proceedings which are the subject of the application to quash shall continue upon such terms as appear just.
Further or Amended Return
(7) The judge hearing an application to quash may direct a further or amended return.
- SI/2014-5, s. 29(E)
Filing and Service of Notice of Application
Time for Giving Notice of Application
43.04 (1) An applicant shall give notice of application in Form 1 and in accordance with rule 43.03 within 30 days after the day on which the order which is the subject of the application was made or given.
(2) Notice of application shall be given:
(a) where the application includes an application for prohibition, by personal service upon the provincial court judge, justice or justices, coroner or other person whose order is the subject of the application; and,
(b) where the applicant is Her Majesty the Queen in Right of Ontario or Canada, as represented by the Attorney General, and the respondent is an accused not represented by a solicitor, by personal service on the respondent, or, where the respondent is an accused represented by a solicitor, on the solicitor of record; or,
(c) where the respondent is Her Majesty the Queen in Right of Ontario or Canada, as represented by the Attorney General, by service upon the prosecutor in accordance with rule 5; and,
(d) by filing, or sending by prepaid registered mail to the office of the clerk of the court in the place where the application is to be heard, two copies of the notice of application, together with proof of service thereof,
and the application shall be returnable within 30 days of service.
Extension of Time
(3) A judge, either before or upon the hearing of the application may, by order, extend any time prescribed by this rule, on such terms as appear just.
Consent to Extension of Time
(4) Any time prescribed by this rule for serving or filing the notice of application or supporting materials may be extended by consent in writing endorsed on the relevant document by the party served or in such other form as a judge of the court may direct.
- Date modified: