Table of Contents. Foreword...v Acknowledgments...vii Table of Cases... xxxv. Introduction...1 PART I YEAR IN REVIEW. Year in Review...

Transcription

1 Table of Contents Foreword...v Acknowledgments...vii Table of Cases... xxxv Introduction...1 PART I YEAR IN REVIEW Year in Review...5 Chapter 1: Rule Making Authority 1. Criminal Code, ss. 482, Related Provision: Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 69, Commentary Case Law Jurisdiction Effect of Rules of Court Appeals Costs Chapter 2: Court Reform 1. Introduction Highlights of Impact on Court Proceedings (a) Summary Conviction Appeals (b) Extraordinary Remedies Case Law (c) Bail Reviews in District and Supreme Court and Bail Respecting Section 469 Offences (Murder Bail) (d) Young Offenders Act [now Youth Criminal Justice Act] (e) Court of Appeal Highlights of Impact on Court Structure (a) Ontario Court (General Division) [Superior Court of Justice] (b) Ontario Court (Provincial Division) [Ontario Court of Justice] xi

2 4. Judicial Regions Regulation Appointments (a) Court of Appeal for Ontario (b) Superior Court of Justice (c) Ontario Court of Justice Statutory Framework (a) Courts of Justice Act (b) Courts of Justice Amendment Act (c) Court Reform Statute Law Amendment Act, (d) Courts of Justice Amendment Act, 1989 (No. 3) (e) Ontario Courts Amendment Act, (f) An Act to Amend The Judges Act and to Make Consequential Amendments to Other Acts (g) Courts of Justice Statute Law Amendment Act, (h) The Courts Improvement Act, Rights of Appearance for Lawyer Licencing Process Candidates Case Law Chapter 3: Disclosure Directives 1. Introduction Province of Ontario Practice Memorandum Disclosure Policy of the Attorney General of Canada Related Criminal Code Provisions Commentary Related Canada Evidence Act Provisions Related Charter Provisions Rules of Professional Conduct, Law Society of Upper Canada, Effective November 1, 2000: Rule 5.1-3, Commentary Commentary PART II CRIMINAL APPEAL RULES COURT OF APPEAL Chapter 4: New Practice Direction Concerning Criminal Appeals of the Court of Appeal 1. Introduction xii

3 2. General Matters Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario Guidelines for Filing Electronic Documents at the Court of Appeal for Ontario Reference Guide for Citation Practices at the Court of Appeal for Ontario List of Frequently Cited Criminal Authorities Court of Appeal for Ontario Practice Direction, Schedule A, Appeal Management Form, Re Allegations of Incompetence of Trial Counsel in Criminal Cases Case Law Absence of Criminal Appeal Rules Proper Forum for Appeal Constitutionality of Notice to Attorney General Crown Compliance Forms (a) Notice of Motion (b) Backsheet (c) Affidavit (d) Order on Appeal (e) Notice of Constitutional Question Fees Index to the Rules Chapter 5: Criminal Appeal Rules SI/ Rule 1 and Related Provisions Interpretation and Definitions Related Criminal Code Provisions Related Youth Criminal Justice Act Provisions Commentary General Matters Confirmed or Introduced by the New Practice Direction Effective March 17, Acquittal Appellant Inmate Appeal Notice of Appeal General Notice of Appeal by Convicted Person Leave In Summary Conviction Proceedings Attorney General s Rights of Appeal xiii

4 Interpretation Documents Access to Criminal Appeal Files Five Judge Courts Case Law Appearance of Counsel on Appeal Notice of Appeal General Dismissal for Want of Prosecution Frivolous or Vexatious Appeals Rule 2 and Related Provisions Application of Civil Rules Commentary Rule 3 and Related Provisions Notice of Appeal Related Criminal Code Provisions Commentary Forms File Number Supplementary Notice of Appeal Contents of Notice of Appeal Change of Solicitor Case Law Contents of Notice of Appeal Separate Notices of Appeal Notice of Appeal Not Always Necessary Forms Notice of Appeal for Inmate Appeal Notice of Appeal or Application for Leave to Appeal Notice of Change of Lawyer Rule 4 and Related Provisions Time for Service of Notice of Appeal Related Criminal Code Provisions Commentary General Time Limitation Case Law Calculation of Time Rule 5 and Related Provisions Manner of Service of Notice of Appeal Related Criminal Code Provisions Related Civil Rules Provisions Proof of Service xiv

5 Commentary Service Substitutional Service by the Crown Case Law Service Substitutional Service by the Crown Form Affidavit of Service Rule 6 and Related Provisions Order Without Attendance of Counsel New Practice Direction Commentary Rule 7 and Related Provisions Extension or Abridgement of Time Related Criminal Code Provisions New Practice Direction Transfer to Penitentiary Extension of Time by Crown Case Law Forum Test for Extension of Time Applications by Accused Waiver Change to Substantive Law Applications by Crown Notice to the Other Party Material The Order Rule 8 and Related Provisions Transcripts New Practice Direction Deficiencies Respecting Transcript Provided Case Law Form of Certificate Deficiencies Respecting Transcript Provided Failure to File Transcript/Setting Aside Order Dismissing Appeal Forms Undertaking Notice of Motion to Obtain Additional Transcript Consent Order xv

6 Rule 9 and Related Provisions Dismissal for Failure to Comply with Rule Commentary Rule 10 and Related Provisions Processing Appeals Commentary Rule 11 and Related Provisions Original Papers and Exhibits Form Requisition Rule 12 and Related Provisions Processing of Appeal Where Legal Aid Refused Commentary Rule 13 and Related Provisions Trial Judge s Report Related Criminal Code Provisions Commentary Overview Inmate Appeals Case Law Obtaining Report Supplementary Reasons Conflict Between Report and Transcript Inmate Appeals Form Trial Judge s Report for Inmate Appeals Rule 14 and Related Provisions Appeal Books Related Civil Rules Provisions Commentary Requisition and Obtaining Release of Exhibits to Prepare Appeal Book Release for Scientific Testing Returning Exhibits to Registrar Prior to Appeal Eliminating Unnecessary Exhibits from Appeal Book Filing Requirements Contents and Form of Appeal Book New Practice Direction Case Law Returning Exhibits to Registrar Prior to Appeal Filing Requirements xvi

7 Control of Own Process Forms Consent Notice of Constitutional Question Rule 15 and Related Provisions Appeal Book for Unrepresented Appellant Commentary Rule 16 and Related Provisions Factums New Practice Direction Cross Appeals Case Law Long Factums Late Factums Content of Factums Charter Note Rule 17 and Related Provisions Sentence Appeals Commentary Forms Form D Case Law Rule 18 and Related Provisions Perfecting The Appeal New Practice Direction Commentary Who is to Receive Materials Number of Copies Required by the Court Certificate of Perfection Supplementary Material Case Law Time for Perfection Rule 19 and Related Provisions New Practice Direction Motion for Directions Commentary Case Law Appearance of Counsel on Appeal Rule 20 and Related Provisions Failure to Perfect Appeal New Practice Direction xvii

8 Case Law Five Judge Courts Rule 21 and Related Provisions Listing Appeals New Practice Direction Related Criminal Code Provisions Case Law New Practice Direction, Motions to Introduce Fresh Evidence New Practice Direction, Allegations of Ineffective Assistance of Counsel Court of Appeal for Ontario Practice Direction, Schedule A, Appeal Management Form, Re Allegations of Incompetence of Trial Counsel in Criminal Cases Related Criminal Code Provisions Commentary Case Law Fresh Evidence Procedure Admissibility Rule 22 and Related Provisions Books of Authorities New Practice Direction Case Law Rule 23 and Related Provisions Intervention New Practice Direction Case Law Test Rule 24 and Related Provisions Appeals in Writing (Non-inmate) New Practice Direction Rule 25 and Related Provisions Inmate Appeals Notice of Appeal and Appeal Books Related Criminal Code Provisions Related Legal Aid Services Act, 1998 Provisions Commentary Overview Inmate Notice of Appeal Bail Pending an Inmate Appeal Extension of Time in Inmate Appeals Post-Sentence Reports Abandonment of Appeals xviii

9 Trial Judge s Report Appeals in Writing The Inmate Appeal Hearing Additional Transcript Appointment of Counsel Case Law Inmate Notice of Appeal Additional Transcript Appointment of Counsel Notification to Inmate of Appeal Date Constitutionality of Inmate Appeal Procedure Attendance of Inmate Form Notice of Appeal for Inmate Appeal Rule 26 and Related Provisions Inmate Appeals Extension of Time Commentary Rule 27 and Related Provisions Inmate Appeals Presence of Appellant Commentary Rule 28 and Related Provisions Inmate Appeals Appeals in Writing Commentary Case Law Rule 29 and Related Provisions Reasons for Judgment Related Criminal Code Provisions Commentary Case Law Rule 30 and Related Provisions Abandonment of Appeals New Practice Direction Case Law General Effect of Escape from Custody Rescission of Abandonment Forms Solicitor Appeal Notice of Abandonment Inmate Notice of Abandonment Rule 31 and Related Provisions New Pratice Direction xix

10 Release from Custody Pending Appeal Sentence Appeal Related Criminal Code Provisions Commentary Introduction When Bail Pending Appeal May Be Obtained The Test Notice to the Crown Material Place of Hearing The Hearing Type of Order or Disposition Available Contents of the Order and Sunset Clauses Reserved Judgments Implementing the Order Review and Variation Cancellation of Bail Order Case Law Material Presence of Represented Accused at Hearing Contents of the Order and Sunset Clauses Review and Variation Forfeiture of Recognizance Effect on Consecutive Sentences Charter of Rights Duty of Counsel Forms Order for Release Warrant for Arrest Rule 32 and Related Provisions Release from Custody Pending Appeal Contents of Affidavit Related Civil Rules Provisions Rule 33 and Related Provisions Conditions of Release Administrative Guidelines Rule 33 Conditions of Release Rule 34 and Related Provisions Variation of Bail Rule 35 and Related Provisions Definition of Justice Rule 36 and Related Provisions Post-Sentence Report xx

11 Commentary Rule 37 and Related Provisions Notice Commentary New Practice Direction Case Law Rule 38 and Related Provisions Appeals Under Part XX.1 Mental Disorder Definitions and Application Related Criminal Code Provisions New Practice Direction Commentary Introduction Overview of Appeal Rules for Mental Disorder Case Law Rule 39 and Related Provisions Notice of Appeal Commentary Form Notice of Appeal Service Extension of Time Registrar Exhibits Form Notice of Appeal Rule 40 and Related Provisions Transcripts Commentary Application of the Rule Ordering the Transcript Contents of the Transcript Agreed Statement of Facts Rule 41 and Related Provisions Appeal Books Commentary Rule 42 and Related Provisions Factums Commentary Rule 43 and Related Provisions Perfecting the Appeal xxi

12 Commentary Rule 44 and Related Provisions Failure to Perfect Appeal Commentary Rule 45 and Related Provisions Interim Orders Respecting Disposition and Placement Decisions Commentary Automatic Stay of Disposition Non-Automatic Stays of Disposition and Placement Decision Case Law Rule 46 and Related Provisions Procedure Where Appellant Unrepresented Commentary Rule 47 and Related Provisions Combined Appeal Commentary Rule 48 and Related Provisions Transitional Commentary Rule 49 and Related Provisions Commencement and Revocation Commentary PART III CRIMINAL PROCEEDINGS RULES SUPERIOR COURT OF JUSTICE Chapter 6: Introduction to Criminal Proceedings Rules Table of Concordance Table of Contents Chapter 7: General Matters Rule 1 and Related Provisions Rule 1 Citation, Application and Interpretation Related Criminal Code Provisions Commentary Forms List Case Law Rule 2 and Related Provisions xxii

13 Rule 2 Non-Compliance with the Rules Commentary Case Law Rule 3 and Related Provisions Rule 3 Time Commentary Case Law Rule 4 and Related Provisions Rule 4 Court Documents Commentary Forms Case Law Rule 5 and Related Provisions Rule 5 Service of Documents Related Criminal Code Provisions Commentary Service Upon Solicitor of Record Personal Service Alternatives to Personal Service Substituted Service or Dispensing with Service Other Matters Case Law Personal Service on Corporations Acceptance of Service by Solicitor Substituted Service Service on Solicitor of Record Forms Rule 6 and Related Provisions Rule 6 Applications Commentary Case Law Forms Rule 7 and Related Provisions Rule 7 Practice Directions Related Rules of Civil Procedure Provisions Commentary Provincial Practice Direction Regarding Criminal Proceedings Rule 20 and Related Provisions Chapter 8: Pre-trial Proceedings xxiii

14 Rule 20 Judicial Interim Release and Review Applications (Code, ss. 520(1), (8); 521(1), (9); 522(1); 523(2)(c)(ii), (3)) Related Criminal Code Provisions Commentary Case Law Jurisdiction Nature of Review Vacating Previous Orders Forms Checklist for Bringing Judicial Interim Release and Review Applications Rule 21 and Related Provisions Rule 21 Release of Exhibits for Scientific Testing (Code, s. 605(1)) Related Criminal Code Provisions Commentary Case Law Cases Where Release of Exhibits for Scientific Testing Granted Cases Where Release of Exhibits for Scientific Testing Refused Other Forms Checklist for Bringing Application for Release of Exhibits for Scientific Testing Rule 22 and Related Provisions Rule 22 Applications to Change the Venue of Trial (Code, s. 599(1)) Related Criminal Code Provisions Commentary Case Law Jurisdiction General Principles Cases Where Change of Venue Granted Cases Where Change of Venue Refused Forms Suggested Draft Order for Change of Venue of Trial Checklist for Bringing Applications to Change the Venue of Trial Rule 23 and Related Provisions Rule 23 Applications to Procure Attendance of Prisoners (Code, ss. 527(2), (7) Related Criminal Code Provisions Commentary General Applications for Attendance at Court Proceedings xxiv

15 Applications for Transfer from Custody Filing of Notice Materials Checklist Under s. 527(1) Checklist Under s. 527(7) Forms Rule 24 and Related Provisions Rule 24 Applications to Take Evidence on Commission (Code, s. 709) Related Criminal Code Provisions Related Provisions from the Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.) Related Provisions from Canada-United States Treaty on Mutual Legal Assistance in Criminal Matters Commentary General Overview Case Law Jurisprudence Checklist for Commission Evidence Forms Rule 25 and Related Provisions Rule 25 Applications for Removal as Solicitor of Record Related Provisions from Rules of Professional Conduct, Law Society of Upper Canada, Effective November 1, Commentary General Jurisprudence Case Law Checklist for Removal of Counsel of Record Rule Rule 26 and Related Provisions Rule 26 Applications for Adjournment Related Criminal Code Provisions Commentary Case Law General Principles Cases Where Adjournment Granted Cases Where Adjournment Refused Forms Suggested Draft Order for Adjournment of Trial Checklist for Bringing Application for Adjournment of Trial Rule 27 and Related Provisions xxv

16 Rule 27 Constitutional Issues Related Criminal Code Provisions Related Charter Provisions Related Courts of Justice Act Provisions (R.S.O. 1990, c. C.43) Commentary Case Law Courts of Justice Act Interventions Forms Notice of Constitutional Question Rule 28 and Related Provisions Rule 28 Pre-Hearing Conferences Rule 29 Case Supervision Judges and Conferences Rule 29A The Appointment of a Case Management Judge Rule 29B The Appointment of a Judge to Determine Issues that are to be Adjudicated in Related Trials Related Criminal Code Provisions Commentary Case Law General Forms Chapter 9: Trial Proceedings and Evidence Rules 30 to 39 Trial Proceedings and Evidence Rule 30 Applications to Admit Evidence Commentary Rule 31 Applications to Exclude Evidence Case Law Rule 32 Books of Authorities Commentary Rule 33 Factums Rule 34 Hearing of Pre-Trial and other Applications Case Law...708, 709 Rule 35 Dangerous and Long-Term Offender Applications Related Criminal Code Provisions Commentary Chapter 10: Summary Conviction Appeals and Extraordinary Remedies 1. Introduction to Summary Conviction Appeals xxvi

17 (a) Section 830 Appeals Versus Section 813 Appeals (b) Superior Court of Justice Rules Rule and Related Provisions Rule 40 Summary Conviction Appeals (Code, ss. 813, 830(1)) Definitions Related Criminal Code Provisions Commentary Overview Section 813 Appeals Section 830 Appeals Powers of the Court Inmate Appeals Intervenors Costs Case Law Section 813 Appeals Jurisdiction Questions on Appeal Parties to the Appeal Sentence Appeals Powers of the Court Section 830 Appeals Questions on Appeal Costs Fresh Evidence Forms Certificate of Non-Payment of Costs on Appeal Warrant of Committal in Default of Payment of Costs Rule and Related Provisions Application Commentary Rule and Related Provisions Extension or Abridgment of Time, Applications for Directions, and Orders Without the Attendance of Counsel Related Criminal Code Provisions Commentary Case Law General Principles Cases Where Extension of Time Granted Cases Where Extension of Time Refused Notice of Application to Extend Time Forms xxvii

18 Rule and Related Provisions Form of Notice of Appeal Related Criminal Code Provisions Rule and Related Provisions Time for Service and Filing Related Criminal Code Provisions Commentary Case Law General Interpretation Dating and Signing of Notice of Appeal Identification of Summary Conviction Court Order Subject of Appeal Appellant s Address for Service Grounds of Appeal Amendment of the Notice of Appeal Grounds of Appeal Held to Comply with the Rule Grounds of Appeal Held Not to Comply with the Rule Giving Notice of Appeal Within 30 Days After Day on which Conviction, Sentence or Adjudication Imposed Forms Rule and Related Provisions Manner of Service and Filing Related Criminal Code Provisions Commentary Case Law General Interpretation Substituted Service Proof of Service Rule and Related Provisions Processing Appeals Related Criminal Code Provisions Commentary Case Law Rule and Related Provisions Transcripts and Agreements Respecting Evidence Related Criminal Code Provisions Commentary Case Law Transcription of the Evidence Failure to File Transcript xxviii

19 Provisional Legal Aid Certificate Failure to File Certificate of Court Reporter Rule and Related Provisions Amendment of Notice of Appeal Related Criminal Code Provisions Commentary Case Law New Grounds of Appeal Rule and Related Provisions Appeal Books Related Criminal Code Provisions Commentary Rule and Related Provisions Facta Commentary Case Law Rule and Related Provisions Books of Authorities Commentary Rule and Related Provisions Perfecting Appeals Related Criminal Code Provisions Commentary Rule and Related Provisions Fixing Date for Hearing Related Criminal Code Provisions Case Law Failure to Give Notice of Hearing of Appeal Adjournments Failure to File Factum Rule and Related Provisions Appeals in Writing Related Criminal Code Provisions Rule and Related Provisions Trials De Novo Related Criminal Code Provisions Commentary Case Law General Interpretation Cases Where Trial De Novo Appeals Ordered Cases Where Trial De Novo Refused xxix

20 Rule and Related Provisions Abandonment of Appeals Related Criminal Code Provisions Case Law Notice of Abandonment Forms Rule and Related Provisions Supervision of Appeals and Dismissal for Non-Compliance Related Criminal Code Provisions Commentary Rule and Related Provisions Appeals Alleging Ineffective Assistance or Incompetence of Counsel Commentary Schedule 1 Superior Court of Justice Protocol Allegations of Incompetence Rule and Related Provisions Time Estimates for Appeal Hearing Commentary Rule and Related Provisions Hearings of Appeals from Sentence Only Commentary Case Law Forms Rule and Related Provisions Failure to Appear for the Hearing of the Appeal Commentary Case Law Failure to Attend Hearing of the Appeal Non-appearance of Appellant at Trial De Novo Dismissal for Want of Prosecution Rule and Related Provisions Reasons for Judgment Rule 41 and Related Provisions Rule 41 Stays and Suspensions Pending Appeal (Code, ss. 261 & 683(5)) Related Criminal Code Provisions Commentary Case Law Stay of Prohibition Order General Principles Cases Where Application to Stay Prohibition Order Granted Cases Where Application to Stay Prohibition Order Refused xxx

21 Stay of Order to Pay Fine Stay of Order for Probation Forms Suggested Draft Order for Stay of Order Pending Appeal Rule 42 and Related Provisions Related Criminal Code Provisions Commentary Case Law Undertaking or Recognizance of the Appellant Undertaking or Recognizance of the Prosecutor Forms Undertaking by Appellant (Defendant) Undertaking by Appellant (Prosecutor) Recognizance Rule 43 and Related Provisions Rule 43 Extraordinary Remedies (Code, s. 774ff.) Related Criminal Code Provisions Case Law Related Habeas Corpus Act Provisions (R.S.O. 1990, c. H.1) Commentary Criminal Code Provisions Procedendo Case Law General Habeas Corpus Certiorari Mandamus Prohibition Procedendo Location of Application [r ] Forms Chapter 11: Ontario Review of Parole Ineligibility Rules (Rule 50) Overview Rule Interpretation Application Filing Service and Filing of Notice of Application Judicial Screening Under Section of the Code xxxi

22 Case Management Hearings Parole Eligibility Report Hearing of Applications Coming into Force Related Criminal Code Provisions Case Law Fifteen Year Parole Ineligibility Requirement Right of Review Determination of Venue of Review Hearing Charter Considerations Venue Jury Selection Presentation of Evidence Order of Presentation of Evidence and Addresses to the Jury Determination by Jury Sample Questions for Jury s Determination General Chapter 12: Superior Court of Justice Protocols and Forms Schedule 1 Superior Court of Justice Protocol Allegations of Incompetence Forms Form 1 Notice of Application Form 2 Notice of Appeal Form 2A Supplementary Notice of Appeal Form 2B Notice of Intention to Present Appeal in Writing Form 2C Court Reporter s Certificate Respecting Evidence Form 2D Court Reporter s Completion Certificate Form 3 Back Sheet Form 4 Affidavit Form 5 Notice of Application and Constitutional Issue Form 6 Acknowledgement of Receipt Card Form 7 Affidavit of Service Form 8 Certificate of Service by Sheriff Form 9 Notice of Abandonment Form 10 Release Order Form 10A Conditions of Release Form 10B Consent Bail Variation under s of the Criminal Code Form 11 Order Releasing Exhibit(s) for Scientific Testing xxxii

23 Form 12 Order for Attendance of Prisoner at a Court Proceeding Form 13 Order for Transfer of Prisoner to Custody of Peace Officer Form 13A Order for Attendance of Prisoner at Judicial Interim Release or Review Application Hearing Form 14 Commission Form 15 Letter of Request Form 16 Order for Commission and Letter of Request Form 17 Pre-trial Conference Report Form 18 Designation of Counsel Form 18-A1 Report to Trial Judge Form 18-A2 Report to Trial Judge (Multiple Accused Cases) Form 18-B Report to Trial Coordinator Form 18-C1 Trial Readiness Report Where Trial Readiness Court Held Form 18-C2 Trial Readiness Report Where Trial Readiness Court not Held Form 19 Appellant s Factum Appeal from Sentence Only Form 20 Application for Review of Parole Ineligibility Form 21 Affidavit in Support of Application for Review of Parole Ineligibility Form 22 Requisition Form 23 Pre-hearing Conference Report for Crown Applications (Dangerous and Long Term Offender Applications) PART IV CRIMINAL RULES ONTARIO COURT OF JUSTICE Chapter 13: Introduction to the New Rules Can. Reg. SI/ Criminal Rules of the Ontario Court of Justice Form 1 Application Form 2 Response Form 3 Consent Case Law Designation of Judges Authorized to Appoint Case Management Judges Protocol Regarding the Use of Electronic Communication Devices in Court Proceedings Policy Regarding Access to Digital Audio Recordings xxxiii

24 Undertaking of Counsel/Licensed Paralegal of Record to the Court for Access to Digital Court Recordings Request Form/Undertaking of Counsel/Licensed Paralegal of Record to the Court for Access to Digital Court Recordings Undertaking to the Court for Access to Digital Court Recordings Request Form/Undertaking to the Court for Access to Digital Court Recordings Practice Direction for s. 11(b) Applications in Toronto Region Section 11(b) Book of Authorities Toronto Region Practice Direction Regarding the Integrated Domestic Violence Court at 311 Jarvis Street, Toronto Practice Directions - Ontario Court of Justice PART V ONTARIO REVIEW BOARD Rules of Procedure Ontario Review Board Rules of Procedure Index xxxiv