Criminal Rules of the SCBC, [SI-97-140]-2

The Supreme Court of British Columbia, pursuant to section 482a of the Criminal Code, hereby makes the annexed Criminal Rules of the Supreme Court of British Columbia.

(1) These Rules apply to all criminal proceedings within the jurisdiction of the Supreme Court of British Columbia.

(3) The Supreme Court of British Columbia Rules for Pre-Trial Conferences1, the Criminal Rules, 19912 and the Summary Conviction Appeal Rules 19913 are repealed.

(4) These Rules are intended to provide for the just determination of every criminal proceeding and shall be liberally construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.

(5) In these Rules, "Code" means the Criminal Code, R.S.C. 1985, c. C-46, as amended.

(7) The forms in the appendix shall be used where applicable and with such variations as the circumstances require.

(8) A failure to comply with these Rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity, and the court

(a) may grant all necessary amendments or other relief on such terms as will secure the just determination of the real matters in dispute; or

(b) only where and as necessary in the interests of justice, may set aside a proceeding or a step, document or order in a proceeding in whole or in part.

(9) The court may, only where and as necessary in the interests of justice, dispense with compliance with any rule at any time.

(10) The court may, only where and as necessary in the interests of justice, extend or shorten any period of time provided for in Rules 1 to 5 or in an order of the court, notwithstanding that an application for extension or an order granting an extension is made after the period of time has expired.

(1) All pre-trial applications in criminal proceedings shall be commenced by a notice of application in Form 1.

(2) Every notice of application shall set forth fully the grounds upon which it is brought and the particular statute provisions or other laws upon which it is based and shall include an estimate of the time needed for the hearing of the application.

(3) Unless these Rules otherwise provide or a judge of the court otherwise directs, a notice of application shall be served at least five days before the date stated in the notice for the hearing of the application.

(4) Unless a judge of the court otherwise orders, a notice of application shall be filed and the application shall be heard at the registry at the place where the trial is to be held.

(5) Except for subrule 51(10), Rule 51 of the Rules of Court of the Supreme Court as to affidavits applies equally to these Rules.

(6) The judge hearing an application may receive viva voce evidence in addition to or in lieu of affidavit evidence.

(7) A notice of application for leave to challenge potential jurors for cause on the ground of prejudice shall be filed and delivered to any opposing party at least 30 days before the date set for jury selection. SI/99-107, s. 1.

(a) on an individual, by leaving a copy of the document with the individual;

(b) on a corporation, by leaving a copy of the document with an officer, director or agent of the corporation, or with a person at any place of business of the corporation who appears to be in control or management of the place of business;

(c) on a judge or a justice of the peace, by leaving a copy of the document with the judge or the justice of the peace, or with a person in charge of the court office where the adjudication was made;

(d) on the Attorney General of Canada, by leaving a copy of the document at the regional office of the Attorney General or at the office of the prosecutor retained by the Attorney General having carriage of the proceedings; and

(e) on the Attorney General of British Columbia, by leaving a copy of the document at the office of the prosecutor having carriage of the proceedings.

(2) A person effecting personal service of a document need not produce the original document or have it in his or her possession.

(3) Where it appears to the court that it is impractical for any reason to effect prompt personal service of a notice of application, notice of appeal or any other document required to be served personally or by an alternative to personal service under these Rules, the court may make an order for substituted service or, where necessary in the interests of justice, may dispense with service.

(4) In an order for substituted service, the court shall specify when service in accordance with the order is deemed to be effected.

(5) Except where a document is to be served personally, service may be effected on a person or corporation by serving the counsel of record of the person or corporation, and this service may be effected

(6) Where a document has been served in a manner other than one authorized by these Rules or an order, the court may make an order validating the service where the court is satisfied that

(a) the document came to the notice of the person to be served; or

(b) the document was served in such a manner that it would have come to the notice of the person to be served except for the person's own attempts to evade service.

(7)	(a) Service of a document may be proved by an affidavit of the person who served it.

	(b) Service of a document by a sheriff or deputy sheriff, police officer, probation officer, bail supervisor or corrections officer may be proved by a certificate of service in Form 2 endorsed on a copy of the document.

	(c) A counsel of record's written admission or acceptance of service is sufficient proof of service and need not be verified by affidavit.

(1)	(a) No writ of mandamus, certiorari, habeas corpus or prohibition shall be issued, but all necessary directions shall be made by order.

	(b) A notice of application for an order referred to in subrule (a) and all supporting material shall be served on all persons who appear to be interested in or likely to be affected by the proceedings and in particular, unless the court otherwise directs, the notice of application shall also be served at least six days before the date stated in the notice for the hearing of the application on the Attorney General of British Columbia, and where it is sought to quash a conviction, order, warrant or inquisition, the notice of application and all supporting material shall be served on the judge, justice or justices who made the conviction or order or issued the warrant or the coroner who held the inquisition.

	(c) Any person not served with the notice of application may show that the person is affected by the proceedings and thereupon may be permitted to take part in the proceedings as though served.

(2) A notice of application for certiorari shall be filed and served within six months after the date of the conviction, order, warrant or inquisition to which it relates.

(3) On the hearing of an application for habeas corpus, the court may direct that an order be drawn up forthwith for the discharge of the prisoner, and such order is a sufficient warrant for any jailer for the discharge of the prisoner.

(4) A notice of application for judicial interim release shall be served together with all supporting material on the Attorney General of British Columbia or the prosecutor at least two clear days before the date stated in the notice for the hearing of the application.

(5) Subject to any disposition required by law and to any order of a court or a judge thereof, the Attorney General of British Columbia may direct the disposition of exhibits after one year from the expiration of the time allotted for appeal or, where an appeal has been filed, after one year from the date of the final determination or withdrawal of the appeal.

(1) When an accused is to be tried with a jury, a pre-trial conference shall be held at a date, time, place and manner as ordered by a judge of the court, or at such further dates and times as may be ordered by the judge presiding over the pre-trial conference.

(3) The court registry shall advise counsel of the date, time and place of the conference and counsel for the accused shall so advise the accused.

(4) If the accused is not in custody, the court registry also shall advise the accused of the date, time and place of the conference by letter sent to the address given on his or her bail recognizance, or such more recent address as the accused may have given in writing to the registry.

(5) If the accused is in custody, the court registry shall also advise the accused's custodian by letter of the date, time and place of the conference and that the accused is required to be present.

(6) The purpose of the conference is to consider such matters as will promote a fair and expeditious trial.

(7) Unless otherwise ordered, the conference shall be conducted in chambers and there shall be a full and free discussion of the issues raised, without prejudice to the rights of the parties.

(8) The court registry shall ensure that a record of a pre-trial conference is made by means of a tape recording.

(9) Crown counsel shall have available at the conference the indictment or draft thereof to be preferred at the trial.

(10) The conference clerk shall record on the file any order made by the judge, as well as any special arrangements necessary for the conduct of the trial, such as for interpreters or electronic equipment.

(11) At the conference, counsel shall disclose to the presiding judge the nature and particulars of any preliminary motion that counsel intend to make.

(12) The presiding judge, in his or her discretion, may direct that the motion be reduced to writing and heard at such time prior to the date fixed for trial as the judge deems fit, or the judge may direct that the motion be heard at the outset of the trial.

(13) At the conference, counsel shall disclose to the presiding judge the nature and particulars of any matter that may arise in the course of the trial that would ordinarily be dealt with in the absence of the jury after it has been sworn, and the anticipated length of time the matter would require for hearing.

(14) The trial judge, in his or her discretion, may direct that the matter be dealt with before any juror on a panel of jurors is called, at such date and time as the judge deems fit, or may direct that the matter be dealt with in the absence of the jury after it has been sworn.

(15) The judge presiding over the conference may adjourn the conference from time to time as necessary and, in the case of an accused who is in custody, the court registry shall advise the accused's custodian of the adjourned date and that the accused is required to be present.

(16) The judge presiding over the conference shall, upon its completion, endorse the indictment or a true copy thereof as to the date the conference was held.

(17) Nothing contained in Rule 5 shall preclude the court from conducting other informal pre-trial conferences in addition to the mandatory conference provided for in subsection 625.1(2) of the Code, on such terms as the court sees fit.

(18) The Chief Justice may issue such practice directions as may be required to give full force and effect to Rule 5. SI/99-107, s. 2.

"appeal" means an appeal from a summary conviction court under Part XXVII of the Code. (appel)

"appeal court" means the Supreme Court of British Columbia. (cour d'appel)

"clerk" means the clerk of the appeal court. (greffier)

"judge" means a judge of the appeal court. (juge)

"registrar" includes the deputy registrar. (registraire)

"registry" means an office of the appeal court in the judicial district nearest to the place where the trial was held. (greffe)

(2)	(a) A defendant who wishes to appeal shall, within 30 days after the pronouncement of the order under appeal, or within 30 days after the imposition of sentence where a sentence has been imposed, commence the appeal by filing in the registry six properly completed copies of a notice of appeal in Form 3 in accordance with the instructions on that form.

	(b) The defendant shall state the defendant's address for service on the notice of appeal.

	(c) The clerk shall forward a copy of the notice of appeal to the prosecutor.

	(d) Filing in the registry constitutes service on the Attorney General of British Columbia.

(3) If the prosecutor wishes to appeal, the prosecutor shall, within 30 days after the pronouncement of the order under appeal,

(a) file in the registry six properly completed copies of a notice of appeal in Form 4 in accordance with the instructions on that form;

(b) serve the defendant with the notice, either before or after it is filed; and

(4)	(a) The prosecutor must serve the defendant personally by leaving a copy of the notice of appeal with the defendant.

	(b) The prosecutor shall file proof of service with the clerk.

	(c) If the prosecutor is unable to serve the notice of appeal on the defendant personally, the prosecutor may apply ex parte to a judge of the appeal court for an order to serve the defendant in the manner that the appeal court directs.

	(d) The appeal court may order substituted service if it is satisfied that the defendant is evading service.

	(e) Where the prosecutor serves the notice of appeal in accordance with an order for substituted service, the defendant is deemed to be served with the notice of appeal.

	(f) On the application of the defendant or prosecutor, the appeal court may

		(i) set aside or vary an order for substituted service as the appeal court considers just; and

		(ii) make any order respecting service of the notice of appeal.

(5) Within 14 days after serving the notice of appeal, the appellant shall furnish to the registrar proof, satisfactory to the registrar, that transcripts of the required material have been ordered.

(6) Subrule (5) does not apply if the appellant has applied under subrule (8) for a trial de novo.

(7) Unless the appeal court otherwise orders, or an agreed statement of facts has been filed pursuant to subsection 830(2) of the Code, the appellant shall

	(a) where an appeal is against an order other than sentence, within 45 days after serving the notice of appeal, file
		(i) the original and one copy of the transcript of evidence, and

		(ii) the reasons for judgment from the summary conviction court,

	and deliver one copy to the respondent;

	(b) where the appeal is against sentence, within 30 days after serving the notice of appeal, file

		(i) the transcript of evidence, if any, on the sentencing proceedings,

		(ii) submissions of the prosecution and the defence as to sentence,

		(iii) the reasons for sentence,

	and deliver one copy to the respondent; and

	(c) where the appeal is against both sentence and an order other than sentence, file and serve the respondent with the material referred to in paragraphs (a) and (b) within 45 days after serving the respondent with the notice of appeal.

Application for Trial de novo

(8)	(a) An appellant who wishes to make an application for a trial de novo under subsection 822(4) of the Code must submit a notice of application to the appeal court within 30 days after serving the notice of appeal.

	(b) At least seven days prior to the hearing of the application, the applicant shall serve a copy of the notice of application and any supporting material on the opposite party.

(9) On filing the notice of appeal, the appellant shall obtain a date for the hearing from the clerk.

(10) In the case of an appeal by the prosecutor, a notice of hearing shall be served on the defendant along with the notice of appeal. The prosecutor may obtain a date for hearing from the clerk prior to filing the notice of appeal.

(11) No date for hearing shall be obtained beyond six months after the date the notice of appeal is filed without leave of the appeal court.

(12) A judge of the appeal court may, at any time after the notice of appeal has been filed, direct that a pre-hearing conference be held.

(13) Where a direction is made for a pre-hearing conference, the parties or their counsel shall attend before a judge of the appeal court at the date, time and place directed to consider any matter that might expedite the appeal.

(14) Unless the appeal court otherwise orders, where the appeal is against an order other than sentence, the appellant shall, not later than 30 days before the hearing of the appeal, and the respondent shall, not later than 14 days before the hearing of the appeal, file two copies of a statement of argument in the registry and serve one copy on the opposite party.

(15) The appellant's statement of argument must contain a concise outline of the circumstances and the relevant facts and a concise statement of the points of fact and law to be argued.

(a) specify what portion of the appellant's outline of circumstances and facts the respondent agrees with;

(b) state the respondent's version of the circumstances and facts where the respondent disagrees with the appellant's version;

(d) state the respondent's position on those points of fact and law contained in the appellant's statement; and

(e) state any additional points of fact and law that the respondent wishes to argue.

(17) Each statement of argument shall include appropriate references to the transcript and the authorities relied on.

(18) The statement of argument must be in paragraphs that are numbered consecutively and must not exceed 20 pages in length on 8½ inch x 11 inch paper, double-spaced.

the respondent may apply to the appeal court for an order that the appeal be dismissed.

(21) Where the registrar considers that the appellant has not pursued the appeal diligently or has not complied with Rule 6, the registrar may refer the matter to the appeal court.

(22) On an application under subrule (20) or a reference under subrule (21), the appeal court may dismiss the appeal or make any other order it considers just.

(23) Where the registrar makes a reference under subrule (21), the registrar shall serve the appellant and the respondent with 14 days notice of the date, time and place of the reference, by mailing the notice to each party's address for service.

(25) Any judge of the appeal court may, on application in Form 6, only where and as necessary in the interests of justice, extend or shorten the time provided in Rule 6 for the giving of any notice or the doing of any act, notwithstanding that an application for extension or an order granting an extension is made after the time has expired.

(26) An appellant who is represented by counsel and who wishes to apply for release, a stay of a probation order or a stay of a driving prohibition must file in the registry

(27) The appellant may file with the application any other material that the appellant considers relevant to the application.

(28) On filing an application under subrule (26), the appellant shall serve the application and accompanying material on the prosecutor.

(29) An appellant who is not represented by counsel and who wishes to apply for release, a stay of a probation order or a stay of a driving prohibition may make the application in writing or in the appeal court in person.

(30) An appellant who elects to make an application in writing must file in the registry the documents referred to in subrule (26).

(a) forward a copy of the material to the prosecutor;

(b) obtain a date for the hearing of the application not later than three days after receiving the material from the appellant; and

shall return a copy of the release documents to the person having custody of the appellant.

(33) The release order, with the undertaking or recognizance and any money or valuable security deposited under the recognizance, shall be filed or deposited with the registrar.

(34) In matters not provided for in Rule 6, the appellant or respondent may apply to the appeal court for directions.