British Columbia Court of Appeal Criminal Appeal Rules, 1986
SI/86-137
Registration 6 August, 1986
 
 

CRIMINAL CODE

British Columbia Court of Appeal Criminal Appeal Rules,
1986 (SI/86-137)
 
 

TITLE

1. These Rules may be cited as the British Columbia Court of Appeal Criminal Appeal Rules, 1986. SI/91-81 , s. 2.
 

INTERPRETATION

1.1 (1) In these Rules
 
"appeal" includes an application for leave to appeal; (appel)
 
"appellant" includes an applicant for leave to appeal; (appelant)
 
"court" means the Court of Appeal; (Cour)
 
"defendant" means the person who has been convicted, sentenced or had some other order, finding or determination made against him; (défendeur)
 
"file" means to file with the registrar in a registry of the court; (déposer)
 
"justice" means a justice of appeal; (juge)
 
"notice of appeal" includes a notice of application for leave to appeal; (avis d'appel)
 
"order under appeal" means the conviction, acquittal, sentence, finding, determination or other order in respect of which the appeal is brought; (ordonnance frappée d'appel)
 
"registrar" includes
 
(a) an assistant, associate or deputy registrar of the court, and
 
(b) any person appointed by the chief justice to temporarily carry out the duties of the registrar; (greffier)
 
"respondent" means
 
(a) the prosecutor, where the appellant is the defendant, and
 
(b) the defendant, where the appellant is the prosecutor. (intimé)

(2) The definitions in sections 2 and 673 of the Criminal Code apply to these rules. SI/91-81 , s. 3.
 

APPLICATION OF COURT RULES AND PRACTICE DIRECTIVES

2. (1) The Court of Appeal Rules (Civil), B.C. Reg. 303/82, as amended from time to time, apply to appeals on matters that are not expressly provided for in these rules.

(2) The court may issue practice directives on any matter respecting appeals.

(3) On an appeal, the court or a justice may give all directions respecting the conduct of the appeal that it or he considers necessary.

(4) The court and a justice have, in relation to an appeal, all of the powers that they have under the Court of Appeal Act, S.B.C. 1982, c. 7, and the rules made under that Act, with any necessary changes as may be applicable.
 

PART I COMMENCEMENT OF APPEALS

Appeal by the Defendant

3. (1) A person who wishes to appeal against conviction, sentence, or conviction and sentence, shall, within 30 days after the imposition of the sentence, commence the appeal by filing an original and four copies of
  

(a) Form 1 or 1A, where the defendant is represented by counsel; or
 
(b) Form 2, where the defendant is not so represented.

(2) Where more than 30 days have lapsed since the imposition of the sentence, a defendant may apply for an extension of the time to appeal by filing an original and one copy of Form 7.

(3) The registrar shall forward a copy of the filed Form 1, 1A, 2 or 7 to the prosecutor. SI/91-81 , s. 4.

Appeal by the Prosecutor

4. (1) Where the prosecutor wishes to appeal, he shall, within 30 days after the pronouncement of the order under appeal,
  

(a) file five copies of the notice of appeal in Form 3; and
 
(b) serve the respondent or proposed respondent with the notice, either before or after it is filed.

(2) Where the prosecutor is unable to personally serve the notice of appeal on the respondent, the court or a justice may authorize the prosecutor to serve the respondent in the manner that the court or a justice directs.

(3) On compliance by the prosecutor with an order under subrule (2), the respondent shall be deemed to be served with the notice of appeal.

Notice of Appeal

5. (1) The notice of appeal shall be in Form 1, 1A, 2 or 3, as the case may be.

(2) The appellant shall state his address for service on the notice of appeal and any document respecting the appeal that is delivered to that address shall be deemed to have been served on the appellant.

(3) Where an appellant, who is not represented by counsel, is in custody at the time he files notice of appeal, he shall state the name of the institution in which he is in custody together with another address for service other than that institution.

(4) The registrar shall forward a copy of the notice of appeal to the judge who made the order under appeal.

(5) A notice of appeal may be amended at any time by consent or with leave of the court or a justice.

(6) A notice of appeal may be amended without leave
  

(a) at any time up to 14 days before an appeal is set to be heard, where factums are not required; or
 
(b) at any time before the appellant files his factums in an appeal, where factums are required.

(7) Where the notice of appeal is amended, the appellant shall file and serve the amended notice of appeal. SI/91-81 , s. 5.
 

PART II APPEAL BOOK AND TRANSCRIPT--APPEALS OTHER THAN SENTENCE APPEALS

Application

6. Rule 9 of this Part does not apply to an appellant or respondent who is not represented by counsel.
 

Filing of Appeal Book and Transcript of Evidence

7. Unless otherwise ordered by the court or a justice, the appellant shall, within 60 days after filing the notice of appeal,
  

(a) file four copies each of an appeal book and transcript or such additional copies as may be required by the registrar; and
 
(b) deliver one copy of the appeal book and transcript to the respondent.

Form and Content of Appeal Book and Transcript

8. (1) The appeal book shall be bound separately in a volume having a blue cover and shall be in Form 4 and comply with the requirements of that form.

(2) The transcript shall be bound separately in a volume having a red cover and shall be in Form 5 and shall comply with the requirements of that form.

(3) The appeal book and transcript shall be printed
  

(a) in 10 point type;
 
(b) only on the left side of the page; and
 
(c) on durable white paper having dimensions of 21.5 cm by 28 cm.

(4) The arguments of counsel shall not be reproduced in the transcript without good reason.

(5) Where the number of pages exceeds 300, an appeal book or transcript shall be bound into two or more volumes, numbered consecutively with each volume containing not more than 200 pages.

(6) Each volume of the appeal book or transcript shall show
  

(a) what pages it contains; and
 
(b) an index in accordance with page 2 of Forms 4 and 5.

(7) The appeal book shall contain
  
(a) an index;
 
(b) a copy of the information or indictment;
 
(c) a copy of all exhibits that are capable of reproduction;
 
(d) a list of all exhibits and affidavits that have been excluded under Rule 9;
 
(e) a copy of the order under appeal;
 
(f) a copy of the notice of appeal; and
 
(g) where there will be no transcript prepared for the appeal, the statement referred to in paragraph (8)(c).

(8) The transcript shall contain
  
(a) an index and, where there is more than one volume, the complete index shall be included in each volume;
 
(b) all rulings of the trial judge, his reasons for judgment or charge to the jury, as the case may be; and
 
(c) a statement of the evidence that has been excluded under Rule 9.

(9) The transcript shall not contain
 
(a) proceedings on the challenge for cause of the array or of a juror,
 
(b) the opening address of the judge,
 
(c) the opening and closing addresses of counsel,
 
(d) all proceedings in the absence of the jury except
 
(i) rulings on the admissibility of evidence following a voir dire or otherwise, or
 
(ii) objections to the judge's charge, and
 
(e) objections to the admissibility of evidence other than a statement that an objection was made

unless
  

(f) the grounds of appeal relate to a matter referred therein;
 
(g) in respect of the items in paragraphs (a) to (e), the court or a justice orders that one or more of those items be included; or
 
(h) the appellant and respondent agree that one or more of the items be included.

(10) Unless the registrar directs, where the appellant and respondent agree on a statement of facts that are relevant to the appeal, the appellant may, instead of filing a transcript, include the agreed statement of facts
  
(a) in the appeal book, or
 
(b) in a separately bound volume with a red cover

as the parties agree or the registrar directs.

(11) The registrar may reject an appeal book or transcript that does not comply with the rules or any order made under them and, on making a rejection, he shall promptly advise the appellant and the respondent of his rejection and the reasons for it. SI/91-81 , s. 6.

Negotiations on Size of Appeal Book and Transcript

9. (1) The appellant and respondent shall attempt to reduce the bulk of the appeal book and transcript by excluding from them material, including evidence, that is unnecessary for a proper hearing of the appeal.

(2) The appellant or respondent may suggest to the other party what material ought to be excluded from the appeal book or transcript.

(3) The appellant or respondent, on two days' notice, may take out an appointment with the registrar to settle the appeal book or transcript.

(4) The registrar may give directions respecting what should be included or deleted from the appeal book or transcript.

(5) The appellant or respondent may appeal a direction of the registrar to a justice and the justice may refer the question to the registrar of the court appealed from or to a judge of that court.

Factums

10. (1) Unless otherwise directed by the registrar, the appellant shall file four copies of his factum and deliver a copy of it to the respondent within 30 days of filing the appeal book and transcript.

(2) Unless otherwise directed by the registrar, the respondent shall file four copies of his factum and deliver a copy of it to the appellant within 30 days of receiving the appellant's factum.

(3) Where the appellant wishes to reply to the respondent's factum, he shall file his factum in reply within seven days of receiving the respondent's factum and promptly deliver a copy of it to the respondent.

(4) Factums shall comply with Form 6 and the requirements set out in that form.

(5) The registrar shall not accept a factum for filing that does not substantially comply with Form 6.

(6) Factums shall not
  

(a) contain irrelevant material; or
 
(b) reproduce any matter that is contained in the appeal book or transcript, where reference to the material or matter will reasonably suffice.

(7) The index page of the appellant's factum shall, where counsel estimates the hearing of the appeal will exceed one day, contain the following endorsement:

"After consultation with counsel for the respondent, I consider that the hearing of this appeal should take _______. I consider that the presentation of my argument will take _______."
 

PART III SENTENCE APPEALS

Sentence Appeals with Counsel

11. In an appeal against sentence, the appellant shall file four copies of the sentence appeal material as may be required by the registrar and serve one copy of the material on the respondent.

Post sentence reports

12. The court may order preparation of a post sentence report relating to a person in respect of whom an appeal against sentence has been brought.

Summary Dismissal for Want of Prosecution or Failure to Comply with Rules

13. (1) Where the appellant fails to
  

(a) diligently pursue his appeal, or
 
(b) comply with these rules,

the respondent may apply to the court or, on an appeal where leave is required, to a justice, for an order that the appeal be dismissed.

(2) On an application under subrule (1) or a reference under subrule (3),
  

(a) the court may dismiss the appeal or make any other order it considers just; or
 
(b) where the appeal required leave and leave has not yet been granted, the court or a justice may dismiss the appeal or make any other order that is considered just.

(3) Where the registrar considers that the appellant has failed to diligently pursue the appeal or has failed to comply with these rules, he may refer the matter to the court or a justice.

(4) Where the registrar makes a reference under subrule (3),
  

(a) he shall serve the appellant and respondent with two days' notice of the hearing of the reference; and
 
(b) the grounds in Rule 17(3)(a) and (b) for not requiring service on an unrepresented appellant apply.

Abandonment

14. (1) An appellant may abandon an appeal by
  

(a) signing and filing a notice in Form 11; or
 
(b) informing the court in person or by counsel that he desires to abandon it.

(2) A signature in a notice under subrule (1)(a) shall be witnessed.

Pre-hearing Conference

15. (1) At any time after the notice of appeal has been filed, the court or a justice may direct a pre-hearing conference.

(2) Where a direction is made under subrule (1), the parties or their counsel or solicitors shall attend before a justice at the time and place directed to consider
 

(a) the reduction in the size of the appeal book or transcript;
 
(b) the simplification or isolation of issues on the appeal;
 
(c) the fixing of the time for 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 justice who held it may make a direction on any matter referred to in subrule (2)(a) to (e) and that direction shall govern the conduct of the appeal unless the court or a justice otherwise orders.

Time Limits

16. The court or justice may extend or shorten the time within which the giving of any notice or the doing of any act required by these rules may be done, notwithstanding that the application for the extension or the order granting it is made after the expiry of the time in respect of which the application to extend is made.

Applications to the Court or a Justice

17. (1) A party who wishes to make an application to the court or a justice shall do so on two clear days' notice to the other party to the appeal, unless the court or a justice otherwise orders.

(2) The applicant shall file a copy of the notice of appeal with his application together with the material upon which he relies, verified by affidavit, unless the court or a justice otherwise orders, and he shall serve all material, including the affidavits, on the other party to the appeal.

(3) Where an appellant is not represented by counsel, the court or a justice may dispense with service of the material where
 

(a) the appellant did not state any address for service on his notice of appeal; or
 
(b) the respondent establishes that the appellant's address for service was fictitious.

Non-compliance with Rules

18. A court or a justice may permit non-compliance with any rule subject to terms and conditions that the court or a justice thinks fit.
 

PART V RELEASE FROM CUSTODY

Procedure on Release Application

19. (1) On an application for release under section 679 of the Criminal Code, the appellant shall file an application in Form 8 and the material referred to in subrule (2) and serve a copy thereof on the prosecutor.

(2) The application shall be accompanied by an affidavit verifying the facts on which the appellant relies in support of his application including the following:
 

(a) a statement of all places where he has resided for the three year period preceding the date that he was sentenced;
 
(b) the place where he intends to reside if he is released;
 
(c) the name of his employer and the place of his employment where he was employed before being placed in custody;
 
(d) his employment prospects if released;
 
(e) the names and addresses of his relatives or other persons who may serve as prospective sureties;
 
(f) a statement of any criminal convictions during the five years preceding his conviction on the offence from which he is appealing, specifying the offences and sentences imposed.

(3) The appellant may accompany his application with any other material that he considers will be relevant to the application.

(4) Unless a justice otherwise orders, submissions on an application under this section by an appellant who is not represented by counsel shall be in writing.

(5) Upon the appellant complying with an order for release,
 

(a) the registrar or other person authorized by the registrar, in a case where an undertaking is ordered, or
 
(b) a justice of the peace who took the recognizance, in any other case,

shall issue a notice of release in Form 9 to the person having custody of the appellant.

(6) The release order, undertaking, recognizance and any money or valuable security deposited under the recognizance shall be filed or deposited with the registrar. SI/91-81 , s. 7.

Reviews Under Section 680 [SI/91-81, s. 8]

20. (1) On an application for a direction under section 680 of the Criminal Code, the appellant shall
 

(a) complete Form 10;
 
(b) submit all material that was before the judge or justice when he made the order that the appellant seeks to have reviewed; and
 
(c) submit a concise memorandum stating why there should be a review.

(2) The registrar shall deliver a copy of the memorandum submitted under subrule (1)(c) to the prosecutor who may, within five days after receiving it, submit a concise memorandum in response.

(3) The chief justice shall, after considering the material before him, inform the registrar of his decision.

(4) Where a review is directed under section 680 of the Criminal Code, the registrar shall advise the applicant and the prosecutor of the time and place where the review hearing will be heard. SI/91-81 , s. 9.

21. [Repealed, SI/91-81 , s. 10]

22. [Repealed, SI/91-81 , s. 11]

Made this 9th day of June, 1986, by the Court of Appeal of British Columbia, with the concurrence of a majority of the Justices thereof present at a meeting held for the purpose of making these Rules.

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N. T. Nemetz, C.J.B.C.          J. A. Macdonald, J.A.
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J. D. Taggart, J.A.             R. P. Anderson, J.A.
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P. D. Seaton, J.A.              H. E. Hutcheon, J.A.
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A. B. B. Carrothers, J.A.       A. B. Macfarlane, J.A.
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E. E. Hinkson, J.A.             W. A. Esson, J.A.
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W. A. Craig, J.A.               B. M. McLachlin, J.A.
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J. S. Aikins, J.A.              R. I. Cheffins, J.A.
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J. D. Lambert, J.A.
 

GRAPHIC IS NOT DISPLAYED, SEE SI/86-137, PP. 3232 TO 3261; SI/91-81, S. 12.

SI/91-81, s. 12.