Supreme Court of Newfoundland and Labrador — Court of Appeal Criminal Appeal Rules (2002) (SI/2002-96)

The following Rules are made pursuant to subsection 482(1) of the Criminal Code of Canada.

Interpretation

• 1 (1) In these Rules, unless the context otherwise requires:

  appeal

  appeal includes an application for leave to appeal and cross-appeal. (appel)

  appellant

  appellant means the person who is appealing from conviction or sentence, or both, and in an appeal by the Crown means Her Majesty the Queen represented by the Attorney General and includes an appellant by cross-appeal. (appelant)

  Attorney General

  Attorney General means the Attorney General as defined in section 2 of the Code and includes counsel instructed by him or her, and Her Majesty the Queen represented in an appeal by the Attorney General. (procureur général)

  Chief Justice

  Chief Justice means the Chief Justice of Newfoundland and Labrador or, in the absence of the Chief Justice of Newfoundland and Labrador, the next senior judge. (juge en chef)

  Code

  Code means the Criminal Code. (Code)

  Court

  Court means the Supreme Court of Newfoundland and Labrador — Court of Appeal or a judge or judges. (Cour)

  judge

  judge means a judge of the Court and includes a judge of the Trial Division of the Supreme Court of Newfoundland and Labrador, whenever any such judge is sitting ex-officio, as a judge of the Court. (juge)

  judgment

  judgment means the formal disposition of an appeal by the Court and includes an order for judgment. (jugement)

  notice of appeal

  notice of appeal includes notice of application for leave to appeal and notice of cross-appeal. (avis d’appel)

  prisoner appeal

  prisoner appeal means an appeal by a person who at the time of the filing of the notice of appeal is in custody and not represented by counsel. (appel d’un détenu)

  provincial court judge

  provincial court judge includes the definition ascribed to that term by the Code. (juge de la cour provinciale)

  Registrar

  Registrar means the officer of the Court appointed as deputy registrar or a clerk of the Court discharging the functions of deputy registrar. (registraire)

  respondent

  respondent means Her Majesty the Queen represented by the Attorney General in the case of a person who appeals against conviction or sentence, and where an appeal is by Her Majesty the Queen represented by the Attorney General, means the person whose acquittal or sentence is appealed, or in whose favour a court has refused to exercise its jurisdiction or has issued an order to quash or stay an indictment. (intimé)

  time prescribed

  time prescribed means the time limited or appointed by these Rules or by a judgment or order. (délai prescrit)

  trial judge

  trial judge means the judge who presided at trial. (juge de première instance)

• (2) The interpretation sections of the Code apply to these Rules.

Application of Rules

• 2 (1) These Rules shall apply to appeals under Part XXI and under sections 784, 830 and 839 of the Code, and to any other appeal filed in the Court in relation to any cause or matter processed in accordance with criminal procedures, so far as the Rules are not inconsistent with any provision of the Code or any other statute or any uniform rules of court made by the Governor in Council under subsection 482(5) of the Code.

• (2) The provisions of these Rules relating to prisoner appeals shall, subject to Rule 2(1) and with the necessary modifications, apply to an appeal by any person who, although not convicted, is detained in custody and appeals under section 672.72 of the Code.

Notice of Appeal

• 3 (1) The notice of appeal shall set out the grounds of appeal. In appeals by a convicted person not represented by counsel, the notice shall be in the manner set out in Form B. In all other appeals by a convicted person or by the Attorney General or an informant, the notice shall be in Form A.

• (2) The senior official of every penal institution shall supply to any prisoner in custody, on request, forms of notice of appeal for the prisoner’s use.

• (3) Except where Rules 3(4), (5) or (6) apply, a notice of appeal

  • (a) from conviction, or conviction and sentence, or sentence only, shall be filed not later than 30 days after the date of sentence; and

  • (b) from acquittal shall be filed not later than 30 days after the date of acquittal.

• (4) Where a person is acquitted of an offence but is convicted instead of an included offence, a notice of appeal from the acquittal shall be filed not later than 30 days after the date of sentence imposed in respect of the included offence.

• (5) Where an appeal is to be taken in respect of one or more counts in an indictment, a notice of appeal from conviction, acquittal or sentence shall be filed not later than 30 days after the acquittal or sentence, in respect of any count in the indictment.

• (6) Where an appeal is to be taken under section 784 or 839 of the Code, a notice of appeal shall be filed not later than 30 days after the date of pronouncement of the decision in the court appealed from or, if the decision is reserved, after the date of the filing of written reasons for the decision.

Filing and Service of the Notice of Appeal

• 4 (1) In a prisoner appeal, filing of a notice of appeal shall be effected by delivering the notice of appeal to the senior official of the penal institution in which the appellant is imprisoned. The senior official shall endorse on the document the date of receipt and shall then return a copy so endorsed to the appellant and forthwith forward the original to the Registrar.

• (2) In all cases where the Attorney General is not the appellant, other than in a prisoner appeal, filing of a notice of appeal shall be effected by

  • (a) filing the original and four copies of a notice of appeal with the Registrar; or

  • (b) mailing the documents to the Registrar by prepaid registered mail.

• (3) The Registrar shall, on receipt of the notice of appeal under Rules 4(1) and (2), effect service by forwarding a copy to the Attorney General and to the court appealed from.

• (4) In an appeal by the Attorney General, the notice of appeal shall be filed with the Registrar. Service by the Attorney General on the respondent or other parties shall be effected within 30 days after such filing by

  • (a) personal service on the respondent;

  • (b) service on the respondent’s legal counsel, if counsel accepts service on behalf of the respondent or if counsel already appears as counsel of record in the Court;

  • (c) service on the appropriate senior official of the penal institution if the respondent is in custody;

  • (d) verified facsimile transmission; or

  • (e) any other manner as may be directed by the Court.

• (5) Proof of service of the notice of appeal, in appeals under Rule 4(4), shall be filed with the Registrar forthwith.

• (6) A notice of cross-appeal shall be filed not later than 30 days after receipt by the cross-appellant of the notice of appeal and shall be served in accordance with this Rule.

Intervention

• 5 (1) Any person, including an Attorney General, interested in an appeal between other parties may, by leave of the Court, intervene in the appeal on any terms and conditions that the Court determines.

• (2) An application for intervention shall briefly

  • (a) describe the intervenor and the intervenor’s interest in the appeal;

  • (b) identify the position to be taken by the intervenor on the appeal; and

  • (c) set out the submissions to be advanced by the intervenor and their relevance to the appeal, and the reasons for believing that those submissions will be useful to the Court and different from those of the parties or other intervenors.

Leave to Appeal

• 6 (1) Where leave to appeal is required, arguments respecting leave shall be presented at the hearing of the appeal unless

  • (a) the appellant or respondent applies, with appropriate supporting materials, for the issue of leave to be determined prior to the hearing of the appeal; or

  • (b) the Court of its own motion requires the parties to appear, with appropriate supporting materials, at a hearing to determine the issue of leave.

• (2) On the hearing of an application, the Court may grant leave, refuse leave or postpone the decision until the hearing of the appeal.

Report of a Trial Judge

• 7 (1) Where the Court or one of the parties requests that the trial judge furnish a report on the case or on any matter relating to the case, notice shall be given to the parties who shall have the opportunity to make submissions to the Court concerning

  • (a) whether the trial judge’s report is to be furnished; and

  • (b) if the report is to be furnished, the scope of the report to be requested.

• (2) Where the Court directs that a report of the trial judge is to be furnished, the Registrar shall, on receipt of the report, mail copies to the parties to the appeal.

Appeals in Writing

• 8 (1) Where an appellant desires to present argument on appeal in writing instead of appearing in person or by counsel, he or she shall state the intention to do so in the notice of appeal and may include in it points of argument, or file and serve a factum in the manner and within the time prescribed by these Rules.

• (2) Where a respondent desires to present argument on appeal in writing instead of appearing in person or by counsel, he or she shall advise the Registrar and the appellant of their intention to do so at the time he or she files and serves a factum. Such factum shall be filed and served in the manner and within the time prescribed by these Rules.

Extension or Abridgment of Time

• 9 (1) Any time prescribed by these Rules, including the time prescribed for the filing of a notice of appeal, may be extended or abridged by the Court before or after the expiration of the period.

• (2) Notice of an application to extend or abridge the time shall be given to the opposite party, unless such application is made by consent or unless otherwise directed by the Court.

• (3) An application to extend or abridge the time for filing a notice of appeal shall include an affidavit and any other relevant material indicating

  • (a) the potential merits of the appeal, including any questions of law that may be in issue on the appeal;

  • (b) an explanation for the failure to have filed the notice of appeal in accordance with the time limits prescribed by these Rules;

  • (c) whether the applicant had demonstrated an intention to appeal within the appeal period;

  • (d) the existence of any prejudice to the intended respondent and any third parties if the appeal were allowed to proceed;

  • (e) the existence of any special circumstances that might cause an injustice to the applicant if the application were refused; and

  • (f) any other information or factors as might reasonably have a bearing on the application.

• (4) An appellant not represented by counsel may apply for an extension or abridgement of time by including with the proposed Form B notice of appeal an application for such extension. The Court may, on notice to the Attorney General and on giving the Attorney General an opportunity to be heard, consider the application and either grant or refuse the requested extension. The Registrar shall send to each party a copy of the Court’s order.

• (5) Where an application under this Rule is heard by a judge, and the judge dismisses it, the applicant may, by filing a notice in writing with the Court within seven days after such dismissal, have the application to extend or abridge the time determined by a panel of the Court.

Effect of Non-compliance with Rules

• 10 (1) Subject to Rule 10(3), non-compliance with these Rules does not render a proceeding void, but where non-compliance occurs, the Court may give any direction or make any order it considers appropriate to give effect to the intent of these Rules.

• (2) Where a party to an appeal or counsel fails to perfect the appeal within a period of 6 months after the filing of the transcript or, where no transcript is filed, within a period of 12 months after the filing of the notice of appeal, or a party or their counsel otherwise fails to comply with these Rules, the Court, on application of any other party to the appeal or of its own motion, on giving to the parties such notice, if any, as the Registrar is able to effect, or without notice if reasonable notice cannot be effected, may

  • (a) strike out the appeal;

  • (b) direct the appellant to perfect the appeal within a specified time;

  • (c) fix a date for hearing of the appeal; or

  • (d) make any other order as may be just.

• (3) Where the notice of appeal was filed prior to January 1, 2000, and 12 months after the day on which these Rules come into force have passed since the last step was taken, and no other order has been made under these Rules, the appeal shall be deemed to have been abandoned and the Registrar shall file a notice of deemed abandonment.

• (4) On filing a notice of deemed abandonment of the appeal, the Registrar shall send a copy of the notice by ordinary mail or by facsimile transmission to counsel of record or to the parties at the last known addresses, if any, of such counsel or parties indicated in the documents filed in the appeal. The Registrar shall, within three months of filing of such notice of deemed abandonment, publish notice of it in The Newfoundland and Labrador Gazette, or publish notice in a single notice containing a list of all the appeals abandoned during the preceding three months.

• (5) Inability or failure of the Registrar to effect any notice required by this Rule shall not affect the deemed abandonment or striking out of an appeal.

• (6) No proceedings shall thereafter be taken in any appeal deemed abandoned or struck out under this Rule unless the appeal is reinstated by the Court, which the Court may do on such terms as the Court deems just.

• (7) The Court shall, on application by a party prior to the date on which the appeal would be deemed to be abandoned, on such terms as the Court deems just, order that the appeal not be deemed abandoned.

Transcripts

• 11 (1) Subject to this Rule, the parties to an appeal shall file with the Court only those portions of the transcript of the proceedings in the court appealed from that are necessary to enable the issues raised on appeal to be determined.

• (2) Except:

  • (a) in a prisoner appeal,

  • (b) in an appeal from a summary conviction appeal court, or

  • (c) where a judge otherwise orders,

  an appellant shall file with the notice of appeal a copy of the request for transcript and certificate in Form D requesting the preparation of those portions of the record in the proceedings that he or she believes are necessary to enable the issues on appeal to be determined and containing certificates stating that the request has been sent to other parties and to the court reporter’s office.

• (3) The appellant shall, within 15 days after filing the notice of appeal, file with the Registrar a certificate of court reporter in Form E certifying receipt of the request for transcript.

• (4) In a prisoner appeal, the Attorney General shall, after receiving a notice of appeal

  • (a) send a request for transcript and certificate in Form D and a certificate of court reporter in the manner set out in Form E, with such modifications as may be necessary;

  • (b) file copies of the completed certificates with the Registrar; and

  • (c) forward copies to the prisoner.

• (5) In an appeal from a summary conviction appeal court, the transcript shall, unless otherwise ordered by the Court, consist of

  • (a) the transcript of proceedings in the trial court as it was submitted on appeal to the summary conviction appeal court, and

  • (b) only those portions of the transcript of proceedings in the summary conviction appeal court as may be necessary to enable the issues on appeal to be determined,

  and the appellant shall file with the notice of appeal a request for transcript and certificate in Form D and, within 15 days thereafter a certificate of court reporter in Form E, with such modifications as may be necessary, in relation to any portions of the proceedings in the summary conviction appeal court which the appellant believes are necessary to enable the issues on appeal to be determined.

• (6) Unless the Court otherwise orders, where an appeal is against sentence only, the transcript shall be limited to

  • (a) the evidence given and submissions made on the issue of sentence; and

  • (b) the reasons for sentence given by the sentencing judge.

• (7) Where a party to an appeal receives a copy of a request for transcript and certificate prepared by another party, the receiving party may

  • (a) where he or she believes that additional portions of the transcript of the proceedings are necessary to enable the issues on appeal to be determined, and

  • (b) within 15 days after receipt, or within such longer time as the Court may allow,

  deliver a request for further portions of transcript and certificate in Form F to the applicable court reporter’s office and to the other parties to the appeal, file a copy of it with the Registrar, and within 15 days thereafter file with the Registrar a certificate of court reporter in Form E, with such modifications as may be necessary, certifying receipt of the request for additional transcript.

• (8) A party to an appeal may at any time apply to the Court for an order

  • (a) excising portions of the transcript of the proceedings which have been requested or prepared and which are unnecessary or inappropriate for the determination of the issues on an appeal; and

  • (b) adding such further portions of the transcript of the proceedings as may be determined to be necessary to the determination of the issues on an appeal.

• (9) The Court may at any time of its own motion order that the transcript of the proceedings be abridged or amplified.

• (10) The parties to an appeal may agree, in writing to be filed in the Court:

  • (a) to substitute an agreed statement of facts in place of all or any portion of the transcript of the proceedings and the exhibits; and

  • (b) to submit a joint request for transcript in Form D and certificate of court reporter in Form E, with such modifications as may be required.

• (11) Where the Court concludes that all or any parties to an appeal have not made reasonable efforts to abridge the transcript of the proceedings so that only those portions as may be reasonably necessary to enable the issues on appeal to be determined are filed with the Court, the Court may make any order that it deems appropriate in the circumstances.

• (12) When the transcript of the proceedings has been prepared as requested, the court reporter shall forthwith forward the original transcript and three copies, together with the original file, to the Registrar and shall make arrangements for the delivery of copies to the parties to the appeal, or their counsel. The Attorney General shall, in the case of a prisoner appeal, be responsible for service of the transcript on the parties to the appeal.

• (13) The Registrar shall, on receipt of the original transcript and copies, notify the parties that the transcript has been received by the Court.