CRIMINAL CODE

New Brunswick Summary Conviction Appeal Rule 64 with Respect to Summary Conviction Appeals to the Court of Queen’s Bench

Summary Conviction Appeal Rule 64 Made Pursuant to Section 482 of the Criminal Code with Respect to Summary Conviction Appeals to the Court of Queen’s Bench of New Brunswick

Appeals

Rule 64

Summary Conviction Appeals to the Court of Queen’s Bench

• 64.01 Application of Rule

This rule applies to appeals under

• (a) Part XXVII of the Criminal Code, R.S.C. 1985, c.C-46, and

• (b) the Provincial Offences Procedure Act, S.N.B. 1987, c.P-22.1.

• 64.02 Interpretation

• (1) Unless the context requires otherwise, the interpretation and definition sections of the Criminal Code apply to this rule.

• (2) In this rule

appeal court means the Court of Queen’s Bench;

clerk means the clerk of the appeal court of the judicial district in which the trial was held;

judge means a judge of the appeal court;

penal institution includes a penitentiary as defined in the Penitentiary Act, R.S.C. 1985, c.P-5 and a correctional institution as defined in the Corrections Act, R.S.N.B. 1973, c.C-26.

• 64.03 How Appeal Commenced

• (1) An appeal to which this rule applies shall be commenced by issuing a Notice of Appeal.

• (2) A Notice of Appeal by a defendant shall be in Form 64A.

• (3) A Notice of Appeal by a prosecutor shall be in Form 64B.

• (4) Subject to paragraph (5), a Notice of Appeal is issued when the original and 2 copies

  • (a) are filed in the office of the clerk, or

  • (b) are mailed by prepaid registered mail or prepaid courier addressed to the clerk.

• (5) Where the appellant is a prisoner in a penal institution and is not represented by counsel, a Notice of Appeal is issued when the original and 3 copies are served on the senior officer of the penal institution in which the appellant is confined.

• (6) The senior officer of a penal institution who is served with a Notice of Appeal under paragraph (5) shall

  • (a) endorse the date of service on all copies of the Notice of Appeal,

  • (b) return a copy so endorsed to the appellant, and

  • (c) forward the original and the other 2 copies to the clerk.

• (7) Upon receiving a Notice of Appeal, the clerk shall

  • (a) assign to the Notice of Appeal a court file number,

  • (b) enface on the original and copies the court file number and date of issue,

  • (c) forward a copy to the summary conviction court together with a Request for Record (Form 64C),

  • (d) if the appellant is a defendant

    • (i) retain and file the original,

    • (ii) forward a copy to the Attorney General, and

    • (iii) return a copy to the appellant, and

  • (e) if the appellant is the Attorney General, or counsel instructed by the Attorney General, or an informant

    • (i) return the original to the appellant, and

    • (ii) retain and file a copy.

• (8) Where the appellant is a defendant, the forwarding by the clerk to the Attorney General of a copy of the Notice of Appeal is deemed to be service on the respondent.

• (9) Where a convicted person not represented by counsel commences an appeal and subsequently retains counsel, the counsel shall immediately give written notice to the respondent and to the clerk of his or her retention and address for service.

• 64.04 Time to Appeal

An appellant who proposes to appeal to the appeal court shall issue a Notice of Appeal within 30 days after the date of the conviction or order appealed from or sentence appealed against or such extended time as the appeal court or a judge allows.

• 64.05 Service of Notice of Appeal

An appellant who is not a defendant shall

• (a) within 15 days after the Notice of Appeal is issued or such extended time as the appeal court or a judge allows, serve the Notice of Appeal on the respondent or such other person as a judge directs in the manner prescribed by Rule 18 for the service of originating process or in such manner as a judge directs, and

• (b) within 7 days after serving the Notice of Appeal or such extended time as the appeal court or a judge allows, file the Notice of Appeal and proof of service with the clerk.

• 64.06 Transcript

• (1) Subject to paragraphs (2), (3) and (4), the summary conviction court shall, on receiving a Request for Record, cause a transcript to be prepared and transmitted to the court.

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

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

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

• (3) The parties to an appeal may agree in writing or a judge may, on motion, order that part of the transcript be omitted.

• (4) Where there is an application under subsection 822(4) of the Criminal Code for an order that an appeal be heard by way of trial de novo, a judge may order that preparation of a transcript of the evidence be dispensed with.

• (5) A court reporter shall, upon payment of the fees prescribed under the Court Reporters Act, R.S.N.B. 1973, c.C-30.1, provide a copy of the transcript or part of the transcript to any party to the appeal.

• 64.07 Exhibits

• (1) Subject to subsection 821(1) of the Criminal Code, the summary conviction court shall retain all exhibits received at a trial until 90 days after the expiry of the time limited for giving a Notice of Appeal or any extension thereof.

• (2) Where the exhibits are forwarded to the appeal court under subsection 821(1) of the Criminal Code, the clerk shall retain custody or control of them until

  • (a) the appeal is abandoned,

  • (b) the clerk is served with a Notice of Appeal to the Court of Appeal, or

  • (c) the expiry of 30 days after the time for taking an appeal to the Court of Appeal.

• (3) When an appeal is abandoned, upon the expiry of 30 days after the time for taking an appeal to the Court of Appeal or when the exhibits are returned from the Court of Appeal, the clerk shall return the exhibits to the summary conviction court.

• (4) A summary conviction court shall

  • (a) upon expiry of the time limited in paragraph (1), if no appeal is taken, or

  • (b) when the exhibits are returned to it under paragraph (3),

return the exhibits to the parties who put them in evidence at the trial.

• (5) Nothing in this subrule affects the provisions of any Act relating to exhibits or things seized or forfeiture thereof.

• 64.08 Setting Down for Hearing

• (1) When the clerk has received

  • (a) proof of service of the Notice of Appeal, and

  • (b) the material transmitted by the summary conviction court in response to the Request for Record,

the clerk shall, unless an application for a trial de novo is pending, enter the appeal on the next Motions Day list prepared under Rule 47.07 and send a copy of the list to each party to the appeal.

• (2) A date for hearing of the appeal shall be fixed in accordance with Rule 47.08.

• 64.09 Application for Trial de novo

• (1) An application under subsection 822(4) of the Criminal Code for an order that an appeal be heard by way of trial de novo shall be made by motion.

• (2) Unless ordered otherwise, the notice of motion shall be served within 10 days after

  • (a) the applicant has received

    • (i) the transcript of evidence, or

    • (ii) a certificate from the summary conviction court or a court reporter that a transcript cannot be provided, or

  • (b) an order has been made under Rule 64.06(4) dispensing with preparation of a transcript.

• (3) When a motion under paragraph (1) has been determined, the clerk shall set the appeal down for hearing under Rule 64.08.

• 64.10 Written Submissions

• (1) Unless an order for a trial de novo has been made, the appellant, not later than 15 days before the hearing of the appeal, and the respondent, not later than 7 days before the hearing of the appeal, shall file with the clerk and serve on the opposite party a written submission.

• (2) A written submission shall include the authorities upon which the party intends to rely with respect to the grounds set out in the Notice of Appeal with references to the evidence to be discussed in relation to the grounds.

• (3) A defendant who is not represented by counsel need not comply with this subrule.

• 64.11 Disposition of Appeal

• (1) A judge who reserves decision on an appeal may file a written decision with the clerk who shall forthwith send to each party to the appeal a copy of the decision endorsed with its date of filing.

• (2) When an appeal is disposed of, the clerk shall forward copies of the decision to the summary conviction court and to the Chief Judge of the Provincial Court.

• (3) When the appeal court

  • (a) allows an appeal from an order dismissing an information and enters a verdict of guilty, or

  • (b) allows an appeal against a sentence,

it may order the defendant to appear before the appeal court for the passing of sentence.

• 64.12 Abandonment of Appeal

• (1) An appellant who wishes to abandon an appeal shall, before the date fixed for hearing of the appeal,

  • (a) serve on the respondent a Notice of Abandonment (Form 64D), and

  • (b) file with the clerk the Notice of Abandonment and proof of service.

• (2) A Notice of Abandonment may be signed by the appellant or the appellant’s counsel, but the appellant’s signature shall be verified by affidavit or witnessed by a solicitor or by an officer of the penal institution in which the appellant is confined.

• 64.13 Failure to Appear at Hearing of Appeal

• (1) If an appellant

• (a) fails to file a required written submission, or

• (b) fails to appear personally or by counsel at the time fixed for hearing of the appeal,

the appeal court may dismiss the appeal or may hear the appeal in the absence of the appellant.

• (2) If a respondent

  • (a) fails to file a required written submission, or

  • (b) fails to appear personally or by counsel at the hearing of the appeal,

the appeal court may hear the appeal in the absence of the respondent.

• 64.14 Extension of Time

An application for

• (a) an order under subsection 815(2) of the Criminal Code to extend the time within which the Notice of Appeal may be given, or

• (b) an order to extend the time for taking any other step under this rule,

shall be made by notice of motion.

• 64.15 Matters Not Provided For

Any matter of procedure or practice not provided for by the Criminal Code or this rule shall be governed by the Rules of Court in force from time to time regulating appeals.

• 64.16 Commencement

This rule comes into force on May 1, 1992.

NOTICE OF APPEAL

(By a Defendant)

Court File No.

IN THE COURT OF QUEEN’S

BENCH OF NEW BRUNSWICK

TRIAL DIVISION

JUDICIAL DISTRICT OF

BETWEEN:

A.B.

APPELLANT

- and -

HER MAJESTY THE QUEEN

RESPONDENT

NOTICE OF APPEAL

(FORM 64A)

• 1 The above named appellant appeals from the conviction (or against the sentence imposed, or as may be) on (date of conviction or sentence) by , Honour Judge (name of trial judge), a Judge of the Provincial Court, at (place where conviction made or sentence passed) on a charge that the appellant did (here set out the offence in the words of the conviction or information including reference to the statute creating the offence).

• 2 The appellant pleaded not guilty (or guilty) at trial.

• 3 The sentence imposed was (here set out particulars of sentence).

• 4 The appellant is (or is not) in custody.

• 5 The appellant will ask this court to quash the conviction and direct a judgment of acquittal to be entered (or quash the conviction and order a new trial or vary the sentence).

• 6 The grounds of the appellant’s appeal are (set out grounds relied on).

• 7 (If applicable) The appellant is a young person as defined in the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985 (if applicable), has applied for legal aid at (location of legal aid office) and has been refused a legal aid certificate (or as may be).

DATED at , this day of , 19

NOTICE OF APPEAL

(By a Prosecutor)

Court File No.

IN THE COURT OF QUEEN’S

BENCH OF NEW BRUNSWICK

TRIAL DIVISION

JUDICIAL DISTRICT OF

BETWEEN:

HER MAJESTY THE QUEEN

(or name of informant if the informant is the appellant)

APPELLANT

- and -

A.B.

RESPONDENT

NOTICE OF APPEAL

(FORM 64B)

• 1 The Attorney General of New Brunswick (or the Attorney General of Canada or name of informant where the informant is the appellant) appeals from an order dismissing an information against the respondent (or against a sentence passed upon the respondent) on (i), by Honour Judge (name of trial judge), a Judge of the Provincial Court, at (place where order was made or sentence was passed) on a charge that the respondent did (set out the offence in the words of the conviction or information including reference to the statute creating the offence).

• 2 The respondent pleaded not guilty (or guilty) at trial.

• 3 (If applicable) The sentence imposed was (here set out particulars of sentence).

• 4 The appellant will ask this court to set aside the verdict and order a new trial (or set aside the verdict and enter a verdict of guilty or vary the sentence).

• 5 The grounds of the appellant’s appeal are (set out grounds relied on).

• 6 (If applicable) The respondent is a young person as defined in the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985.

DATED at , this day of , 19

REQUEST FOR RECORD

(Court, Court File Number, Style of Proceeding)

TO HONOUR JUDGE

REQUEST FOR RECORD

(FORM 64C)

The above named appellant has filed a Notice of Appeal, a copy of which is transmitted herewith.

You are requested, upon receipt of this notification, to forthwith transmit to me the conviction (or order of dismissal) and all other material in your possession in connection with the proceedings as required by subsection 821(1) of the Criminal Code, together with a transcript of the evidence (or the parts of the transcript of evidence listed below) and of any reasons for judgment or sentence.

(where applicable, list the parts of the transcript of evidence)

DATED at , this day of , 19

NOTICE OF ABANDONMENT

(Court, Court File Number, Style of Proceeding)

NOTICE OF ABANDONMENT

(FORM 64D)

I hereby give notice that I, , abandon the appeal herein.

DATED at New Brunswick, this day of , 19

This Notice was signed in the presence of
	Appellant (or appellant’s counsel )
Witness
To the Respondent

To the Clerk of the Court of Queen’s Bench for the Judicial District of

• NOTE: 

  If the Notice of Abandonment is signed by the appellant personally, Rule 64.12(2) requires that the appellant’s signature be verified by affidavit or witnessed by a solicitor or by an officer of the penal institution in which the appellant is confined.