Supreme Court of Newfoundland and Labrador — Court of Appeal Criminal Appeal Rules (2002) (SI/2002-96)
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Regulations are current to 2024-04-01
Exhibits
12 (1) Except where otherwise provided by the Code, all documents, exhibits and other things received in connection with a trial or proceeding that is appealable under these Rules shall be retained by the trial court, the Crown or the Registrar, as the case may be, for a period of 90 days after the expiration of the time limited for filing a notice of appeal. If an appeal is not commenced before that time and unless a judge or the trial judge otherwise orders, all such documents, exhibits or other things shall be returned to and received by the party who produced them at the trial or proceeding or who had custody and control of them at the trial or proceeding or to counsel.
(2) On receipt or filing of a notice of appeal, the Registrar or clerk of the trial court shall forthwith
(a) cause to be sent to the Registrar a list of all documents, exhibits and other things that were before the trial court; and
(b) advise any other person who has custody of those documents, exhibits and other things of the appeal.
Thereafter the documents, exhibits and other things shall be retained in the custody of that person until the appeal is finally disposed of. On the final disposition of the appeal and subject to any order that may be made by a judge, the custodian of those items shall dispose of them in the manner provided in Rule 12(1).
(3) Notwithstanding the provisions of this Rule, the Court may at any time prior to the final disposition of the appeal request the custodian of the documents, exhibits and other things to forward all or any of them to the Court, and the custodian shall immediately comply with such request.
(4) Nothing in this Rule shall alter the results of application of the provisions of the Controlled Drugs and Substances Act or of any other federal or provincial enactment insofar as they relate to documents, exhibits or other things seized and to their forfeiture.
Appeal Book
13 (1) Subject to Rule 13(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 conduct of the appeal;
(d) a copy of the information or indictment;
(e) a copy of any decision of the trial court that is the subject of the appeal or related to it, whether or not it is included in the transcript;
(f) a copy of any agreed statement of facts entered at the trial or agreed to under these Rules;
(g) any portions of the transcript as the appellant deems appropriate; and
(h) 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 Rule 13(1), there shall be filed
(a) a completed Form G;
(b) a copy of any pre-sentence report and victim impact statement;
(c) a copy of any compensation, probation, or conditional sentence order or any other order which is the subject of the appeal;
(d) a copy of the criminal record of the offender if one is entered at the trial; and
(e) any medical or psychiatric reports filed at the time of sentence.
(3) Where the appellant is a convicted person not represented by counsel, the Attorney General shall, unless otherwise ordered by the Court, prepare the appeal book required under this Rule and shall forward a copy of the appeal book to the appellant free of charge.
(4) The respondent may file an appeal book.
(5) The Registrar may refuse to accept an appeal book that does not comply with these Rules or that is not legible.
(6) Unless the Court otherwise orders or on consent by the parties, exhibits shall be retained by the trial court, Crown or the Registrar as provided by Rule 12 and need not be reproduced in the appeal book. Counsel may prepare copies of key documents or extracts therefrom for the use of the Court.
Factums
Appellant’s Factum
14 (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;
(b) the appeal is against sentence only; or
(c) the Court orders otherwise.
(2) The appellant’s factum shall be signed by the appellant or the appellant’s counsel 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 court appealed from and the result in the court appealed from, with reference to the evidence by page and line,
(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,
in paragraphs numbered consecutively throughout the factum; and
(e) Schedule A, containing a list of the authorities relied on with a reported citation if available and a court citation if not, 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 on appeal, of the authorities relied on, and
(iii) all relevant provisions of statutes, regulations and by-laws, with each authority and relevant provision separately tabbed.
(3) Unless authorized by the Chief Justice, Part III, excluding the Schedules, shall not ordinarily exceed 40 pages in length.
Respondent’s Factum
15 (1) Subject to Rules 15(4) and 17(2), each respondent shall prepare and file a respondent’s factum.
(2) The respondent’s factum shall be signed by the respondent or the respondent’s counsel 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 reference to the evidence by page and line,
(b) Part II, containing the position of the respondent on 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,
in paragraphs numbered consecutively throughout the factum; and
(e) Schedule A, containing a list of the authorities relied on with a reported citation if available and a court citation if not, 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 on appeal, of the authorities relied on, and
(iii) all relevant provisions of statutes, regulations and by-laws, with each authority and relevant provision separately tabbed.
(3) Unless authorized by the Chief Justice, Part III, excluding the Schedules, shall not ordinarily exceed 40 pages in length.
(4) A respondent who is not represented by counsel need not comply with this Rule.
Form of Appeal Book and Factum
16 (1) An appeal book shall be printed double-spaced on one side of letter size paper with the printed pages to the left and with each page numbered at the upper left corner. Printing includes reproduction of copies by typing, offsetting, mimeographing, photocopying or any other process. The cover of the appeal book shall be grey and each volume shall have marked on it its volume number and a reference to index page numbers contained in it.
(2) A factum shall be double-spaced on one side of the paper only with printed pages to the left. All pages shall be numbered consecutively. All paragraphs in a factum shall be numbered consecutively throughout the factum. The covers of an appellant’s factum shall be coloured buff or yellow, and the covers of the respondent’s factum, including the factum of a cross-appellant, shall be coloured blue.
Perfecting Appeals
17 (1) Subject to Rule 17(2), within 60 days after being notified that the evidence has been transcribed, or if no evidence is to be transcribed, within 60 days after the filing of the notice of appeal, an appellant shall
(a) serve on each party
(i) a copy of the appeal book, and
(ii) a copy of the appellant’s factum, if one is required; and
(b) file with the Registrar
(i) proof of service of the notice of appeal,
(ii) four copies of the appeal book,
(iii) the original and three copies of the appellant’s factum, if one is required, and
(iv) written confirmation that the appeal book and, if required, a factum have been forwarded to the respondent.
(2) Where the appellant is a convicted person not represented by counsel, within the time prescribed by Rule 17(1)
(a) the Attorney General shall file with the Registrar four copies of the appeal book;
(b) if the appellant files a factum, the appellant shall file with the Registrar the original and four copies of the appellant’s factum; and
(c) the Registrar shall forward to the respondent a copy of the appellant’s factum, if any.
(3) Within 30 days after receipt of the appellant’s factum, the respondent shall
(a) file with the Registrar the original and three 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 Rule 17(1) or (2) is complied with, then, on the expiration of 30 days or on the filing of a factum by every respondent, and intervenor if any, entitled to do so, whichever shall first occur, either the appellant or a respondent may file an application to set a date for a hearing, the filing of which shall perfect the appeal.
Appeal Process
Hearing of Appeals
18 (1) The Court may on application by any party after perfection of the appeal or at any time of its own motion, whether the appeal is perfected or not, set a time for the hearing of any appeal. If the appeal has not been perfected, the Court may direct which materials may be filed and when they may be filed.
(2) A perfected cross-appeal may, with leave of the Court, be set down for hearing even though the main appeal has not been perfected.
Evidence on Appeal
19 (1) In seeking to adduce evidence on appeal under the Code, the applicant shall file an interlocutory application, which shall concisely set out the nature of 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 interlocutory application 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) Either prior to or after ruling on the admissibility of the proposed 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.
Abandonment of Appeals
20 (1) An appellant who desires to abandon an appeal shall complete a notice of abandonment of appeal in Form C, signed by the appellant or the appellant’s counsel of record on the appeal.
(2) The notice of abandonment shall be filed, directly or by facsimile transmission, with the Registrar and the Registrar shall forward a copy to the respondent and to the court reporter’s office.
(3) Where a notice of abandonment has been filed, no formal order shall be required. If requested, the Registrar may provide a certificate of abandonment of appeal.
(4) Except where there is a formal order dismissing the appeal, the Court may, at any time on application, grant an order permitting withdrawal of the notice of abandonment if, in its opinion, it is in the interest of justice to do so.
Failure to Appear at Hearing of Appeal
21 Where a party fails to appear at the hearing of the appeal, the Court may adjourn the hearing or hear the appeal in that party’s absence.
Pre-hearing Conferences
22 (1) At any time after the notice has been filed, the Chief Justice may direct a pre-hearing conference.
(2) Where a direction is made under this Rule, the parties or their counsel shall attend before a judge, at the time and place directed, to consider one or more of:
(a) the reduction in size of the appeal book or transcript;
(b) the simplification or clarification of issues in the appeal;
(c) the fixing of the time for the hearing of the appeal;
(d) the conduct of the hearing of the appeal; and
(e) any other matter that might expedite the appeal.
(3) After a pre-hearing conference, the judge who held it may make a direction on any matter referred to in Rule 22(2) and that direction shall govern the conduct of the appeal unless the Court orders otherwise.
(4) The judge conducting a pre-hearing conference shall not sit on the hearing of the appeal, except by request of the parties, and shall not disclose to the appeal panel positions taken or admissions or concessions made by the parties or their counsel at the conference.
Release from Custody Pending Appeal
23 (1) An application, under the provisions of the Code, for release pending appeal shall set forth the evidence and argument to be presented in support of the requirements stipulated by the Code for release.
(2) The application shall be accompanied by affidavit or affidavits, including where practicable an affidavit of the applicant, 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 abode in the three years preceding conviction,
(iii) proposed place of abode 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 as to sentence only, any unnecessary hardship that would be caused if the applicant were detained in custody and the reasons why leave to appeal the sentence should be granted.
(3) Where the Attorney General desires to assert that the detention of the applicant is necessary 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.
(4) The applicant and the Attorney General may, with leave of the Court, cross-examine on affidavits filed by the opposite party.
(5) 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 counsel for the applicant and the Attorney General.
(6) The applicant may 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 argument that the appeal or application for leave to appeal is not frivolous. The Attorney General may file in reply.
(7) When granting an application for judicial interim release, the judge may make a separate order requiring that the applicant is 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.
(8) Where judicial interim release is granted, the applicant 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 Young Offenders Act, and a notice to release from custody in Form H of these Rules.
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