Courts of Justice Act - O. Reg. 721/94

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Courts of Justice Act

Ontario REGULATION 721/94

RULES OF THE COURT OF APPEAL IN APPEALS UNDER THE PROVINCIAL OFFENCES ACT

Consolidation Period: From December 12, 1994 to the e-Laws currency date.

No amendments.

This is the English version of a bilingual regulation.

CONTENTS

DEFINITIONS AND INTERPRETATION

Definitions

1.(1)In these rules,

“Act” means the Provincial Offences Act; (“Loi”)

“appeal court” means the Ontario Court (Provincial Division) or the Ontario Court (General Division), as the case may be, sitting as the appeal court under section 116 or 135 of the Act; (“tribunal d’appel”)

“civil rule” means a rule in the Rules of Civil Procedure (Regulation 194 of the Revised Regulations of Ontario,1990); (“règle civile”)

“criminal panel” means any panel of three judges assigned to hear appeals in the week in which a matter is referred to a criminal panel under these rules; (“formation pénale”)

“inmate appeal” means an appeal or a motion for leave to appeal by a person who at the time the notice of appeal or notice of motion for leave to appeal is given is in custody and is not represented by counsel; (“appel d’une personne détenue”)

“judge” means the Chief Justice of Ontario, the Associate Chief Justice of Ontario or a judge of the Court of Appeal; (“juge”)

“Registrar” means the Registrar of the Court of Appeal and includes a deputy, associate or assistant Registrar. (“greffier”) O. Reg. 721/94, s.1(1).

Application of rules

(2)These rules apply in respect of appeals under sections 131 and 139 of the Act. O. Reg. 721/94, s. 1(2).

Matters not provided for

(3)Where matters are not provided for in these rules, the practice shall be determined by analogy to them. O. Reg. 721/94, s.1(3).

APPLICATION OF CIVIL RULES

2.(1)Except where otherwise provided by the Act, another statute or these rules, the Rules of Civil Procedure apply, where appropriate and with necessary modifications, to appeals under sections 131 and 139 of the Act. O. Reg. 721/94, s. 2(1).

(2)Civilrules 61.03 (motion for leave to appeal), 61.04 (commencement of appeals), 61.05 (certificate or agreement respecting evidence), 61.07 (cross-appeals), 61.09 (perfecting appeals), 61.10 (appeal book), 61.11 and 61.12 (factums) and 61.13 (dismissal for delay) do not apply to appeals under sections 131 and 139 of the Act. O. Reg. 721/94, s.2(2).

SPECIAL LEAVE TO APPEAL

Form of notice of motion

3.(1)A motion for leave to appeal, other than in an inmate appeal or where the moving party is not represented by counsel, shall be made by a notice of motion in Form 1. O. Reg. 721/94, s.3(1).

Time for service

(2)The notice of motion in Form 1 shall,

(a)be served within 30 days after the date of the order or decision from which leave to appeal is sought;

(b)state the date on which the motion will be heard, being a date not later than 60 days after the date of the order or decision from which leave to appeal is sought;

(c)be filed with proof of service in the office of the Registrar within five days after service. O. Reg. 721/94, s.3(2).

Idem

(3)The notice of motion in Form 1 shall be served at least three days before the date on which the motion is to be heard. O. Reg. 721/94, s.3(3).

Form of notice in inmate appeal or appeal by other party unrepresented by counsel

(4)A motion for leave to appeal in an inmate appeal or by another person who is not represented by counsel shall be made by a notice of motion in Form 2. O. Reg. 721/94, s.3(4).

Time for service

(5)The notice of motion in Form 2 shall,

(a)be served within 30 days after the date of the order or decision from which leave to appeal is sought;

(b)state whether the moving party wishes to present the argument in person or in writing;

(c)where the moving party wishes to present the argument in person, state that the motion will be heard on a date to be fixed by the Registrar. O. Reg. 721/94, s.3(5).

Service of notice of motion

(6)Service of a notice of motion for leave to appeal shall be effected,

(a)in an inmate appeal, by delivering the notice of motion to the senior official of the institution in which the moving party is in custody;

(b)in an appeal other than an inmate appeal, where the defendant is the moving party, by leaving a copy of the notice of motion with,

(i)the prosecutor, and

(ii)if the prosecutor is not acting on behalf of the Crown, the Crown Law Office (Criminal) of the Ministry of the Attorney General; and

(c)where the prosecutor is the moving party, by leaving a copy of the notice of motion with,

(i)the defendant, and

(ii)if the prosecutor is not acting on behalf of the Crown, the Crown Law Office (Criminal) of the Ministry of the Attorney General. O. Reg. 721/94, s.3(6).

Motion to be heard by judge

(7)A motion for leave to appeal shall be heard by a judge. O. Reg. 721/94, s.3(7).

Contents of notice of motion

(8)A notice of motion for leave to appeal shall set out,

(a)the special grounds upon which leave to appeal is sought;

(b)any question of law upon which the appeal is to be founded; and

(c)where the appeal is as to sentence, the basis for the appeal. O. Reg. 721/94, s.3(8).

Motion record

(9)On a motion for leave to appeal, other than an inmate appeal, the moving party shall serve,

(a)a motion record containing, in consecutively numbered pages arranged in the following order,

(i)a table of contents describing each document,

(ii)a copy of the notice of motion,

(iii)a copy of the proposed notice of appeal,

(iv)a copy of the certificate or information,

(v)a copy of any reasons of the trial court and the appeal court if the reasons are not included in the transcript,

(vi)a copy of any report prepared under the authority of an order made during the course of the proceedings,

(vii)a copy of all affidavits used before the appeal court, and

(viii)a copy of any other material in the court file that is necessary for the hearing of the motion;

(b)relevant transcripts of evidence, if they are not included in the motion record. O. Reg. 721/94, s.3(9).

Filing

(10)On a motion for leave to appeal under subrule (9), the moving party shall file one copy of the motion record and transcripts, with proof of service, within 30 days after the filing of the notice of motion for leave to appeal. O. Reg. 721/94, s.3(10).

Responding party’s record

(11)On a motion for leave to appeal, the responding party may, where he or she is of the opinion that the moving party’s motion record is incomplete, serve a motion record containing, in consecutively numbered pages arranged in the following order,

(a)a table of contents describing each document; and

(b)a copy of any material to be used by the responding party. O. Reg. 721/94, s.3(11).

Filing

(12)The responding party shall file one copy of the motion record, with proof of service, within five days after service of the moving party’s motion record and transcripts. O. Reg. 721/94, s.3(12).

Tabs may be used

(13)Despite subrules (9) and (11), the parts of the motion record may be divided by numbered tabs provided that the pages within the tabs are consecutively numbered. O. Reg. 721/94, s.3(13).

Transmittal of inmate notice

(14)The Registrar shall transmit to the Attorney General a copy of a notice of motion for leave to appeal filed by an official of an institution referred to in clause (6)(a). O. Reg. 721/94, s.3(14).

Inmate motion and motion in writing

(15)A motion for leave to appeal in an inmate appeal or by another person who is not represented by counsel shall be dealt with in accordance with Rule 4. O. Reg. 721/94, s.3(15).

INMATE APPEALS/APPEALS IN WRITING BY UNREPRESENTED DEFENDANT—LEAVE TO APPEAL

Motion for leave to appeal in writing

4.(1)Where the moving party for leave to appeal is not represented by counsel, the moving party may present the case for leave to appeal and argument in writing, and the motion shall be dealt with in accordance with subrules (2) to (10). O. Reg. 721/94, s.4(1).

Motion to be dealt with expeditiously

(2)Where the moving party is in custody, the motion for leave to appeal shall be dealt with as expeditiously as possible. O. Reg. 721/94, s.4(2).

Filing of argument in inmate appeal

(3)In an inmate appeal the written argument shall be filed with the notice of motion or within 15 days of service of the notice of motion by delivering the argument to the senior official of the institution in which the moving party is in custody. O. Reg. 721/94, s.4(3).

Service and filing of material, unrepresented non-inmate

(4)Where the moving party is not in custody, the moving party shall serve and file the motion record, transcripts and all other material that would be required if the motion for leave to appeal were to be heard with oral argument, within 30 days after the filing of the notice of motion for leave to appeal, and shall file two copies of the written argument with the motion record. O. Reg. 721/94, s.4(4).

Motion to be considered by judge

(5)The motion for leave to appeal shall be considered by a judge. O. Reg. 721/94, s.4(5).

Submissions from respondent

(6)If the judge considers that the motion has sufficient merit to require argument from the prosecutor, the judge shall so endorse the file, whereupon the Registrar shall transmit to the prosecutor copies of the notice of motion and the written argument of the moving party, if not included in the notice of motion, together with notification that the submissions of the prosecutor in answer to the motion should be made in writing within seven days of the receipt of the material from the Registrar and that two copies of the submissions should be filed with the Registrar. O.Reg. 721/94, s.4(6).

Procedure on dismissal of motion

(7)If the judge considers that the motion for leave to appeal does not have sufficient merit to require argument from the prosecutor, the judge shall give written reasons for judgment dismissing the motion. O. Reg. 721/94, s.4(7).

Respondent’s submissions to moving party

(8)Where submissions have been required from the prosecutor, a copy of them shall be transmitted to the moving party together with a notification that he or she may make written submissions in reply within seven days of receiving the submissions of the prosecutor. O. Reg. 721/94, s.4(8).

Written reasons

(9)When the moving party’s submissions in reply have been received, or the time for submitting them has expired, the motion shall be referred for disposition to the judge, who shall give written reasons for judgment, to be dealt with as if the reasons were a reserved judgment. O. Reg. 721/94, s.4(9).

Time for service, extension

(10)Ifthe notice of motion in Form 2 is not served within the time limited by rule 3, the moving party shall set out in the appropriate place in Form 2 the grounds for seeking an extension of time. O. Reg. 721/94, s.4(10).

Oral hearing, inmate appeal

(11)Where the moving party is in custody and has given notice that he or she wishes to present the motion in person, the judge shall direct that the motion for leave to appeal be listed for hearing, and in that event may request the Attorney General to arrange for the attendance of the moving party at the hearing. O. Reg. 721/94, s.4(11).

NOTICE OF APPEAL

Time for service

5.(1)Where leave to appeal is granted, a notice of appeal shall be served in the manner provided in subrule 3(6) within 10 days after the granting of leave. O. Reg. 721/94, s.5(1).

Manner of service

(2)Despite subrule (1), the notice of appeal may be served upon the solicitor of record in the manner provided for in rule 16.05 of the Rules of Civil Procedure. O. Reg. 721/94, s.5(2).

Notice of appeal in inmate appeal

(3)The notice of appeal in an inmate appeal shall be in Form 3. O. Reg. 721/94, s.5(3).

Notice of appeal in other appeals

(4)The notice of appeal in all other appeals shall be in Form 4. O. Reg. 721/94, s.5(4).

ORDER WITHOUT ATTENDANCE OF COUNSEL

6.Except for an application for release from custody under section 132 of the Act, any order provided for in these rules may be made with the consent in writing of the parties without the attendance of counsel. O. Reg. 721/94, r. 6.

EXTENSION OR ABRIDGMENT OF TIME

General powers of judge

7.(1)The time for a motion for leave to appeal and to appeal and for doing any other act in connection with an appeal for which a time is prescribed may be extended or abridged by a judge before or after the expiration of the time prescribed. O. Reg. 721/94, s.7(1).

Notice

(2)Except in an inmate appeal, notice of motion to extend or abridge time shall be given to the opposite party unless otherwise directed by a judge. O. Reg. 721/94, s.7(2).

Substituted service or dispensing with service

(3)Where, on motion without notice, it appears to a judge that reasonable efforts have been made without success to give or deliver a notice or document in the manner required by these rules or the Act, or that reasonable efforts would not be successful, the judge may make an order for substituted service of the notice or document in such manner as the judge directs or, where necessary in the interests of justice, may dispense with the giving or delivery of the notice or document upon such terms as the judge considers proper in the circumstances. O. Reg. 721/94, s.7(3).

Extension of time in inmate appeal

(4)An extension of time relating to an inmate appeal may be granted by a judge and the endorsement to that effect shall constitute an order extending the time. O. Reg. 721/94, s.7(4).

(5)In all cases where the motion for an extension of time in an inmate appeal is served six months or more after the time for serving the notice of motion for leave to appeal, and in any other case where the judge considers it appropriate, the Registrar shall give the respondent notice of the motion. O. Reg. 721/94, s.7(5).

(6)Within seven days of receiving notice of the motion, the prosecutor shall, if the motion is opposed, file a written response to the motion with the Registrar, and a copy of the response shall be forwarded by the Registrar to the moving party together with a notification that he or she may make written submissions in reply to the response of the prosecutor within seven days after receipt of the response. O. Reg. 721/94, s.7(6).

(7)If the judge to whom the motion is made under subrule (5), after reviewing the grounds upon which the moving party requests an extension of time and any submissions filed by the moving party or the prosecutor under subrule (6), is of the opinion that an extension of time should be refused, the judge shall give reasons in writing for the refusal. O. Reg. 721/94, s.7(7).

(8)The reasons given by the judge on the motion shall be sent to the moving party and, where the prosecutor has filed a response, to the prosecutor, and where the motion is granted the prosecutor and the moving party shall be notified by the Registrar. O. Reg. 721/94, s.7(8).

TRANSCRIPTS

No application to inmate appeals

8.(1)This rule does not apply to inmate appeals. O. Reg. 721/94, s.8(1).

Certificate or undertaking

(2)The appellant shall, at the time the notice of appeal is filed with the Registrar, file a certificate of the court reporter stating that copies of transcripts required for the hearing of the appeal have been ordered or file an undertaking in Form 5 that any such transcripts will be filed within 30 days after the filing of the notice of appeal. O. Reg. 721/94, s.8(2).

Transcripts for the court

(3)Except where otherwise ordered, three copies of the transcript of evidence at the trial and of any evidence received under section 136 of the Act are required for the use of the court. O. Reg. 721/94, s.8(3).

Contents of transcript

(4)Unless otherwise ordered by a judge, or except as otherwise consented to by the respondent, there shall be omitted from the transcript,

(a)all final argument;

(b)all objections to the admissibility of evidence, except a notation that an objection was made and a brief summary of the nature of that objection and the position of counsel, but the trial judge’s ruling and reasons in respect of the objection shall be set out in full in the transcript. O. Reg. 721/94, s.8(4).

Order for inclusion of additional transcript

(5)A party obtaining an order for the inclusion in the transcript of any portion of the matter referred to in subrule (4) shall furnish the order to the court reporter within five days after the granting of the order, and furnish a copy of the order to the other parties together with confirmation that the order has been sent to the reporter. O. Reg. 721/94, s.8(5).

Appeal from sentence only

(6)In respect of an appeal as to sentence only,

(a)where there was a plea of guilty at the opening of the trial before any evidence was taken, the transcript shall include the entire hearing before the court, including,

(i)the arraignment,

(ii)the statement of counsel for the prosecution,

(iii)any evidence,

(iv)any submissions of counsel for the prosecution and the defence,

(v)any statement by the defendant prior to the passing of sentence, and

(vi)the trial judge’s reasons for sentence;

(b)where the plea was not guilty and was followed by the adducing of evidence, the transcript shall include,

(i)the trial judge’s reasons for conviction,

(ii)the verdict,

(iii)any evidence called in respect of sentence,

(iv)any submissions of counsel for the prosecution and for the defence on sentence, and

(v)the trial judge’s reasons for sentence. O. Reg. 721/94, s.8(6).

Agreed statement of facts

(7)Where the plea was not guilty and was followed by the adducing of evidence, then within 30 days of receipt of the transcript referred to in clause (6) (b), counsel for the appellant and for the respondent shall make every effort to agree to a statement of facts which shall be included in the appeal book. O. Reg. 721/94, s.8(7).