Criminal Proceedings Rules of the Manitoba Court of Queen’s Bench (SI/2016-34)

Marginal note:Filing of supplementary appeal book

20.13 A defendant may file a supplementary appeal book that contains materials relevant to the appeal that are omitted from the appeal book filed by the prosecutor.

Factums and Books of Authorities

Marginal note:Requirements

• 20.14 (1) The appellant and the respondent are each required to file a factum and book of authorities, unless the judge presiding at the summary conviction appeal assignment court otherwise directs.

• Marginal note:Contents of factum

  (2) Rule 5.08 applies to the factum.

Abandoning Appeal

Marginal note:Notice of abandonment

20.15 An appellant may abandon an appeal by

• (a) signing and filing a notice of abandonment in Form 9 of the schedule; and

• (b) serving the notice on the respondent.

Application for Trial De Novo

Marginal note:Notice of motion

• 20.16 (1) An appellant who seeks a trial de novo under subsection 822(4) of the Code must file and serve a notice of motion at the time of filing and serving the notice of appeal.

• Marginal note:Contents

  (2) The notice of motion must set out the grounds on which the trial de novo is sought.

• Marginal note:Assignment court list

  (3) The notice of motion must be placed on the summary conviction appeal assignment court list.

• Marginal note:Judge’s powers

  (4) If a trial de novo is sought, the judge presiding at the summary conviction appeal assignment court may

  • (a) determine if further materials should be filed by the parties; and

  • (b) if necessary, set a date for the hearing of the motion.

Readiness for Hearing

Marginal note:Conditions

20.17 An appeal is deemed to be ready to be heard if

• (a) any application under subsection 822(4) of the Code has been determined;

• (b) the Court has received the appeal book and a transcript of the evidence, if required; and

• (c) the appellant and the respondent have each filed a factum and book of authorities and served them on the other party, unless a judge has dispensed with the filing of those documents.

Failure to File

Marginal note:Appellant

20.18 A judge may dismiss an appeal if an appellant who is required to file a factum or book of authorities has not done so within the time limit set by the judge presiding at the summary conviction appeal assignment court and has not sought an extension of time to file those documents.

Marginal note:Respondent

20.19 If a respondent who is required to file a factum or book of authorities has not done so within the time limit set by the judge presiding at the summary conviction appeal assignment court and has not sought an extension of time to file those documents,

• (a) a judge may set the matter for hearing; and

• (b) the respondent is not allowed to file a factum or book of authorities after the matter is set for hearing without leave of the Court.

Failure to Appear

Marginal note:Appellant

20.20 If the appellant fails to appear personally or by counsel on the date fixed for hearing the appeal, the Court may summarily dismiss the appeal.

Marginal note:Respondent

20.21 If a respondent fails to appear personally or by counsel on the date of the hearing of the appeal, the Court may proceed with the appeal in the absence of the respondent.

Rule 21 — Stays Pending Appeal

Marginal note:Application

21.01 Rules 21.02 to 21.05 apply to applications for an order

• (a) under section 261 of the Code for a stay of an order of prohibition under section 259 of the Code; and

• (b) under subsection 683(5) of the Code to suspend an order of the trial court.

Marginal note:Notice of motion

21.02 An application referred to in rule 21.01 must be made by filing a notice of motion in Form 5 of the schedule that sets out the relief requested, accompanied by

• (a) a copy of the information that contains the charge in respect of the offence of which the applicant was convicted;

• (b) a copy of the notice of appeal;

• (c) an affidavit of the applicant that includes the matters set out in subrule 21.03(1) or (2), as the case may be; and

• (d) a copy of any other material in the court file that is necessary for the hearing and determination of the application.

Marginal note:Affidavit — paragraph 21.01(a)

• 21.03 (1) If the application is made under paragraph 21.01(a), the affidavit of the applicant must contain

  • (a) the particulars of the offence of which the applicant was convicted, including reference to the results of any analysis of the applicant’s bodily substances to determine the presence of alcohol or drugs and whether the offence involved property damage, bodily harm or death;

  • (b) the particulars of the applicant’s driving record, if any;

  • (c) the particulars of the applicant’s criminal record, if any;

  • (d) a statement as to whether the applicant is addicted to the use of alcohol or drugs and, if so, what steps, if any, the applicant has undertaken or proposes to undertake for the treatment of that addiction pending the determination of the appeal; and

  • (e) the particulars of any unnecessary hardship that would be caused to the applicant if the stay or suspension were not ordered.

• Marginal note:Affidavit — paragraph 21.01(b)

  (2) If the application is made under paragraph 21.01(b), the affidavit of the applicant must state

  • (a) why there is merit to the appeal; and

  • (b) the particulars of any unnecessary hardship that would be caused to the applicant if the stay or suspension were not ordered.

Marginal note:Service

21.04 The applicant must serve the notice of motion and supporting materials on the prosecutor personally at least two clear days before the date fixed for the hearing of the application.

Marginal note:Order

• 21.05 (1) The prosecutor may consent, in writing, to the order sought by the applicant on the terms included in a draft order.

• Marginal note:Order without attendance of counsel

  (2) If a judge is satisfied that the relief sought by the applicant should be granted, the judge may grant the order on the terms sought, without the attendance of counsel.

Repeal

22.01 [Repeal]

Coming into Force

Marginal note:October 1, 2016

23.01 These rules come into force on October 1, 2016.