Vol. 137, No. 14 — July 2, 2003

Registration
SI/2003-136 2 July, 2003

CRIMINAL CODE

Rules Amending the Manitoba Criminal Appeal Rules

The annexed Rules were adopted at a meeting of the Judges of The Court of Appeal of Manitoba on June 13, 2003.

THE COURT OF APPEAL:

column 1	column 2
R.J. Scott, C.J.M.
C.R. Huband, J.A.	M.A. Monnin, J.A.
A.R. Philp, J.A.	F.M. Steel, J.A.
A.K. Twaddle, J.A.	B.M. Hamilton, J.A.
G.J. Kroft, J.A.	M.H. Freedman, J.A.

RULES AMENDING THE MANITOBA
CRIMINAL APPEAL RULES

AMENDMENTS

1. The Manitoba Criminal Appeal Rules (see footnote 1)  are amended by these Rules.

2. Subrule 3(1) of the Rules is replaced by the following:

Form of initiating document

3(1) An initiating document for an appeal by an accused shall be in Form 1 of the schedule and shall set out the following information:

(a) the offence(s) charged against the accused;

(b) the place where the trial was held;

(c) the date of conviction and of sentence;

(d) the court that made the conviction;

(e) the sentence imposed;

(f) the age of the accused;

(g) whether oral evidence was tendered at trial;

(h) whether the accused wishes to be present at the hearing of the appeal;

(i) the current mailing address of the accused; and

(j) the nature of and the reasons for the order that the accused intends to ask the court to make;

but the court or a judge may make any order allowed by law, notwithstanding that it is not requested in the initiating document, or that proper reasons are not stated in the initiating document.

3(1.1) An initiating document for a Crown appeal shall be in Form 2 of the schedule in the case of an appeal from acquittal and in Form 3 of the schedule in the case of an appeal from sentence, and shall set out the following information:

(a) the offence(s) charged against the accused;

(b) the place where the trial was held;

(c) the date of acquittal or the date of sentence;

(d) the court that granted the acquittal or imposed the sentence;

(e) the age of the accused;

(f) in the case of an appeal from sentence, the sentence imposed upon the accused;

(g) in the case of an appeal from acquittal, whether oral evidence was tendered at trial; and

(h) the nature of and the reasons for the order that the Crown intends to ask the court to make;

but the court or a judge may make any order allowed by law, notwithstanding that it is not requested in the initiating document, or that proper reasons are not stated in the initiating document.

3. Rules 4 and 5 of the Rules are replaced by the following:

Notice of appeal may be included

4(1) Subject to subrule (2), a notice of appeal may be included in the same document when an application is made for leave to appeal, and no further notice of appeal is necessary if the application is granted.

4(2) If an application is made for leave to appeal from the summary conviction appeal court, a separate notice of appeal shall be filed within seven days after the order granting leave to appeal is made.

Leave to appeal

4.1(1) Where an appeal is from a verdict or sentence in a trial by indictment and leave to appeal is required, leave to appeal may be sought

(a) on a motion for leave with appropriate supporting materials before a judge in chambers; or

(b) from the court in conjunction with the hearing of the appeal on its merits.

4.1(2) Where an appeal is from a decision of a summary conviction appeal court, leave to appeal shall be sought on a motion for leave filed no later than 30 days after the date of sentence or acquittal with appropriate supporting materials before a judge in chambers.

Filing of initiating document by Crown

5(1) Where an accused is the appellant or intended appellant, the initiating document shall be sent in quadruplicate by regular lettermail to the registrar, or filed in quadruplicate in the office of the registrar, no later than 30 days after the date of sentence.

5(2) The registrar shall retain one copy of the initiating document and without delay deliver the other copies to the Attorney General, to the trial court or summary conviction appeal court and to the trial judge.

4. (1) Subrule 7(1) of the Rules is replaced by the following:

Service requirements

7(1) Subject to subrule (2), a notice required or authorized to be given by the Criminal Code (Canada) or these rules is deemed to be given if it is sent by regular lettermail to the last known address of the person to whom the notice is to be given.

(2) Subrule 7(2) of the Rules is amended by striking out the word "or" at the end of clause (a), by adding the word "or" at the end of clause (b) and by adding the following after clause (b):

(c) effected substitutionally in the manner and within the period directed by a judge.

5. Rules 9 to 11 of the Rules are replaced by the following:

Judge's notes proof of evidence

9 If evidence at a proceeding was not recorded in a manner that allows a transcript to be prepared, the presiding judge's notes certified by him or her are prima facie proof of the evidence and conduct of the proceeding.

Certification of transcript

10 Where a transcript of the evidence and, where applicable, the charge to the jury are certified by the court transcriber, the certificate is prima facie proof of the accuracy of the transcript.

Ordering transcript

11(1) If evidence at a proceeding was recorded in a manner that allows a transcript to be prepared, the appellant shall file with the registrar, at the time the initiating document is filed,

(a) confirmation from transcription services that the transcript has been ordered; or

(b) a letter to the registrar explaining why the transcript has not been ordered.

11(2) If the registrar accepts the letter of explanation, the registrar shall extend the time for the appellant to order the transcript and shall provide the appellant with written notice of the new deadline for ordering the transcript.

11(3) If the letter of explanation is not satisfactory to the registrar, the appellant may, no later than 10 days after being notified by the registrar, apply to a judge in chambers for an extension of time to order the transcript.

11(4) An appeal shall be deemed to be abandoned if

(a) the transcript is not ordered at the time the initiating document is filed and the time for ordering the transcript is not extended by the registrar or a judge; or

(b) the registrar or a judge extends the time for ordering the transcript but the transcript is not ordered within that extended time period.

11(5) The charges that may be made under subsection 682(4) of the Criminal Code (Canada) to obtain the transcript are the same as those fixed with regard to civil cases in the Court of Queen's Bench.

11(6) The appellant shall pay for the transcript necessary for an appeal, except where the Crown, as respondent, agrees to assume responsibility for payment.

6. (1) Subrule 18(1) of the Rules is replaced by the following:

Attorney General to prepare appeal book

18(1) In cases involving an appeal as to acquittal or conviction, the Attorney General shall prepare and file an appeal book with the registrar

(a) within 30 days after the initiating document is filed, or as soon thereafter as practicable, if the Crown is the appellant; or

(b) within 30 days after the factum is filed by the appellant, or as soon thereafter as practicable, if the Crown is the respondent.

18(1.1) In cases involving an appeal of a sentence only, the Attorney General shall prepare and file the appeal book as soon as practicable after the initiating document is filed.

(2) Clause 18(3)(b) of the Rules is replaced by the following:

(b) send a copy of the appeal book to the parties or their counsel by regular lettermail at their last known addresses.

7. Clauses 19(a) and (b) of the Rules are replaced by the following:

(a) the appellant shall file with the registrar and serve on the respondent an appellant's factum within 30 days after receipt by the registrar of the transcript of the sentencing hearing or, where a transcript is not required, the appeal book; and

(b) the respondent shall file with the registrar and serve on the appellant a respondent's factum within 20 days after service on the respondent of the appellant's factum.

8. Clause 20(1)(a) of the Rules is replaced by the following:

(a) the appellant shall file with the registrar and serve on the respondent an appellant's factum within 45 days after receipt by the registrar of the transcript at trial or, where a transcript is not required, the appeal book; and

9. Rule 21 of the Rules is replaced by the following:

Extension of time for filing of factum

21 Subject to subrule 25(4), the time for filing a factum may be extended, either before or after the expiry of the time limit, if the registrar receives an application in writing that contains an explanation for the delay that is satisfactory to the registrar.

10. Subrules 25(3) and (4) of the Rules are replaced by the following:

25(3) Where the appellant's factum is not filed within the time limits set out in these rules, the registrar or a judge may fix a date for hearing, and thereafter, the respondent shall have 30 days within which to file a factum.

25(4) Where

(a) the appellant's factum is not filed within the time limits set out in these rules;

(b) no application to extend time for filing has been made within three months after the receipt by the registrar of the transcript or, where a transcript is not required, the appeal book; and

(c) no date for a hearing has been set under subrule (3);

the registrar shall notify counsel for the appellant, or the appellant, if unrepresented, that, unless the appeal is perfected in accordance with these rules within 30 days after the date of the notice, the appeal will be deemed to be abandoned.

11. Rule 26 of the Rules is replaced by the following:

Non-receipt of transcript

26 Where an appeal hearing is dependent upon a consideration of a transcript of trial proceedings and

(a) the transcript is not received by the registrar within four months after the initiating document is filed unless transcription services advises the registrar that the transcript has been ordered but will not be completed until a later date; or

(b) it appears to the registrar that the transcript has not been ordered or will not be available;

the registrar may notify the appellant that, unless the appeal is perfected in accordance with these rules within 30 days after the date of the notice, the appeal will be deemed to be abandoned.

12. Rule 28 of the Rules is repealed.

13. Rules 32 and 33 of the Rules are replaced by the following:

Compliance with Rule 11 required

32 On an application for judicial interim release, where oral evidence was taken at trial, the appellant shall satisfy the judge that he or she has complied with the requirements of Rule 11.

Order allowing judicial interim release

33 Where a judge determines that the appellant should be allowed judicial interim release on entering into a recognizance, the judge shall specify, in an order in Form 4 of the schedule, the amounts in which the appellant and his or her surety or sureties, if any, shall be bound on recognizance, and shall specify such conditions as may be appropriate, such as a date before which the hearing must be held.

14. Subrule 34(1) of the Rules is replaced by the following:

Form of recognizance

34(1) A recognizance ordered under rule 33 shall be in Form 5 or 6 of the schedule and may be declared before the registrar, who shall, subject to subrule (2), satisfy himself or herself as to its sufficiency.

15. Subrule 35(1) of the Rules is replaced by the following:

Release of appellant

35(1) The recognizances of an appellant and of his or her surety or sureties, if any, shall be filed with the registrar, who shall without delay, in Form 7 of the schedule, notify the warden, superintendent or jailer of the correctional institution in which the appellant is confined of the granting of judicial interim release and of the right of the appellant to be released from custody unless the appellant is detained for some other cause.

16. The schedule to the Rules is replaced by the schedule set out in the schedule to these Rules.

COMING INTO FORCE

17. These Rules come into force on July 1, 2003.

SCHEDULE

Form 1

(Subrule 3(1))

NOTICE OF APPEAL/NOTICE OF APPLICATION FOR LEAVE TO APPEAL BY ACCUSED

IN THE MATTER OF ______________ (name of accused in full)

(D.O.B. D/M/Y)    convicted (or pleaded guilty) on the _______    day of _______ 20 ___ , of ________________  (state the charge(s) in full)  before _________ (name of judge) at the ________ (name of court)  in _________ (court centre), and was sentenced on the ____ day of ____ , 20 ___ before ____________________ (name of judge)  at the _______ (name of court) in _______ (court centre) and now in custody at _________ (name of institution or penitentiary)
or
 whose last known address is:

The accused intends to _________ (appeal or apply for leave to appeal) to The Court of Appeal against the ___________ (conviction and/or sentence) on the following grounds: ______________________________________________________________________________________________

And such further grounds as counsel may advise and This Honourable Court may permit.

The accused wishes to present his/her case and argument ___________________ (in writing or by oral argument)

The accused ________________ (desires or does not desire) to be present in person at the hearing of the appeal.

WAS ORAL EVIDENCE TENDERED AT TRIAL?  YES    NO

HAS A TRANSCRIPT OF THE EVIDENCE WITH RESPECT TO CONVICTION AND/OR SENTENCE BEEN ORDERED FROM TRANSCRIPTION SERVICES?   YES    NO

Address for service for the accused is ______________________
___________________________________________________
(Address of accused or counsel for accused)

DATED this __________ day of _______ , 20__ .

__________________________________
(Signature of accused or counsel for accused)

TO:
The Registrar of The Court of Appeal
Law Courts Building
100E - 408 York Avenue
Winnipeg, MB R3C 0P9

AND TO:
Manitoba Justice
Criminal Prosecutions
5th Floor - 405 Broadway
Winnipeg, MB R3C 3L6

OR
Department of Justice Canada
Criminal Prosecutions
301 - 310 Broadway
Winnipeg, MB R3C 0S6

Form 2

(Subrule 3(1.1))

NOTICE OF APPEAL/NOTICE OF APPLICATION FOR LEAVE TO APPEAL FROM ACQUITTAL BY CROWN

IN THE MATTER OF _____________________________________ (name of accused in full)

(D.O.B. D/M/Y) _______ acquitted on the ___________ day of __________ , 20___ , of __________ (state the charge(s) in full) before ______________ (name of judge) at the _____________ (name of court) in ___________________ (court centre)

Last known address of accused: _____________________________________________
_____________________________________________

The Attorney General of the Province of Manitoba/The Attorney General of Canada, ______________ (appeals or applies for leave to appeal) to The Court of Appeal against the acquittal of the accused on the following grounds:
_____________________________________________
_____________________________________________

And such further grounds as counsel may advise and This Honourable Court may permit.

The Court will be asked to reverse the acquittal and _______________________________________________________

The address for service of the Attorney General is:
_____________________________________________
_____________________________________________

WAS ORAL EVIDENCE TENDERED AT TRIAL?   YES NO

HAS A TRANSCRIPT OF ALL RELEVANT EVIDENCE BEEN ORDERED FROM TRANSCRIPTION SERVICES? YES NO

DATED this ___________ day of _______ , 20___ .

_____________________________________________
Signature of counsel

TO:
The Registrar of The Court of Appeal
Law Courts Building
100E — 408 York Avenue
Winnipeg, MB R3C 0P9

AND TO:  The accused

AND TO:
Counsel for the accused

Form 3

(Subrule 3(1.1))

NOTICE OF APPEAL/NOTICE OF APPLICATION FOR LEAVE TO APPEAL FROM SENTENCE BY CROWN

IN THE MATTER OF ______________ (name of accused in full)

(D.O.B. D/M/Y) ________ convicted (or pleaded guilty) on the ___________ day of ________ 20___ , of _______________ (state the charge(s) in full) before ______________ (name of judge) at the ________________ (name of court) in _______________ (court centre), and was sentenced on the __________ day of ________, 20___ before _____________ (name of judge) at the__________ (name of Court) in _____________ (court centre) , and now in custody at _________ (name of institution or penitentiary)

or

whose last known address is: _______________________

The Attorney General of the Province of Manitoba/The Attorney General of Canada, _________________ (appeals or applies for leave to appeal) to The Court of Appeal against the sentence imposed on the accused on the following grounds:
___________________________________________________
_______________________________________

And such further grounds as counsel may advise and This Honourable Court may permit. The Court of Appeal will be asked to impose a fit sentence.

The address for service of the Attorney General is:
_____________________________________________
_____________________________________________

HAS A TRANSCRIPT OF ALL RELEVANT EVIDENCE FROM THE SENTENCING HEARING BEEN ORDERED FROM TRANSCRIPTION SERVICES? YES NO

DATED this ____________ day of _________ , 20___ .

_____________________________________________
Signature of counsel

TO:
The Registrar of The Court of Appeal
Law Courts Building
100E — 408 York Avenue
Winnipeg, MB R3C 0P9

AND TO:
The accused

AND TO:
Counsel for the accused

Form 4

(Rule 33)

JUDICIAL INTERIM RELEASE ORDER IN THE COURT OF APPEAL

 

 

In the matter of the appeal of ______ (name of accused in full) convicted at ______ (name of court) by ______ (name of judge) on the ______ day of ______ 20 ______ , and sentenced on the ______ day of ______ 20 ______ , of ______ (state the charge(s) in full) and now in custody ______ (name of institution or penitentiary)

[  ] LEAVE TO APPEAL (WHERE NEEDED) HAVING BEEN GRANTED APPLICATION OF THE ABOVE-NAMED ACCUSED [  ] DENIED  [ ] WITHDRAWN  [ ] GRANTED [  ] BASED ON ACCUSED'S PERSONAL UNDERTAKING

OR

[  ] BASED ON ACCUSED'S RECOGNIZANCE $ ______

[  ] WITH SURETY/SURETIES $ ______

[  ] WITH CASH DEPOSIT $ ______

OTHER CONDITIONS:

[  ] KEEP THE PEACE AND BE OF GOOD BEHAVIOUR: ___

[  ] REMAIN WITHIN: ______

[  ] RESIDE AT: ______

[  ] ABSTAIN FROM COMMUNICATING WITH: ______

[  ] ABSTAIN FROM ALCOHOL

[  ] ABIDE BY ALL RULES AND REGULATIONS OF: ___

[  ] ATTEND IN PERSON AT THE HEARING OF THE APPEAL AND REPORT TO THE CLERK OF THE COURT OF APPEAL, ROOM 330, LAW COURTS BUILDING, WINNIPEG, NO LATER THAN TEN MINUTES BEFORE THE SCHEDULED HEARING OF THE APPEAL

[  ] THE ACCUSED OR COUNSEL FOR THE ACCUSED MUST CONFIRM THAT A TRANSCRIPT OF ALL APPLICABLE EVIDENCE HAS BEEN ORDERED WITH RESPECT TO CONVICTION AND/OR SENTENCING FROM TRANSCRIPTION SERVICES

[  ] THE ACCUSED UNDERTAKES TO ABIDE BY THE RULES OF COURT FOR THE FILING OF A FACTUM AND TO PROCEED WITH A HEARING OF THE APPEAL, ON A DATE TO BE FIXED, NO LATER THAN THE DAY OF ______ , 20 ___

[  ] OTHER ______

DATED this ______ day of ______, 20 ______ at Winnipeg, Manitoba.

FIAT:
__________________ J.A:

Form 5

(Rule 34)

RECOGNICANCE

WHEREAS ______ (name of accused in full) ______ (D.O.B. D/M/Y) was convicted on the ______ day of ______ , 20 ______ , of ______ (state the charge(s) in full) before ______ (name of judge) at the ______ (name of court) in ______ (court centre), and was sentenced on the ______ day of______ , 20 ______ by ______ (name of judge) to ______ (sentence imposed), and now in custody at ______ (name of institution or penitentiary) and has appealed to The Court of Appeal, and has applied for judicial interim release pending the hearing and disposition of the appeal, and an order having been made allowing judicial interim release

upon the accused giving an undertaking

or

upon the accused entering into a recognizance in the sum of $ ______ with ______ surety/sureties, each in the sum of $ ______ and subject to the conditions specified in the attached order.

The accused now personally comes before me,

to confirm in writing the undertaking

or

to enter into the recognizance in the sum of $ ______ be made and levied on the accused's goods and chattels, lands and tenements to the use of Her Majesty the Queen, her heirs and successors, if the accused fails to abide by the conditions contained in the said order.

ANY NOTICES in connection with the appeal are to be addressed to the accused's place of residence, namely ____________
and no change of residence shall be made without notification to the registrar of The Court of Appeal.

DECLARED AND ACKNOWLEDGED before me this ______ day of ______ , 20 ______ , at Winnipeg, Manitoba.

Registrar ________________________

Signature of accused ________________________

Form 6

(Rule 34)

RECOGNIZANCE OF SURETY

WHEREAS ______ (name of accused in full) ______ (D.O.B. D/M/Y) was convicted on the ______ day of ______ , 20 ______ , of ______ (state the charge(s) in full) before ______ (name of judge) at the ______ (name of court) in ______ (court centre), and was sentenced on the ______ day of ______ , 20 ______ by ______ (name of judge) to ______ (sentence imposed) and now in custody at ______ (name of institution or penitentiary) and has appealed to The Court of Appeal, and has applied for judicial interim release pending the hearing and disposition of the appeal, and an order having been made allowing judicial interim release upon the accused entering into a recognizance in the sum of $ ______ with ______ surety/sureties, each in the sum of $ ______ and subject to the conditions as specified in the attached order.

_____ (name of surety in full) , now personally comes before me, to enter into a recognizance in the sum of $ ______ , as surety, to be made and levied on the surety's goods and chattels, lands and tenements to the use of Her Majesty the Queen, her heirs and successors, if the accused fails to abide by the conditions contained in the order.

DECLARED AND ACKNOWLEDGED before me this ______ day of ______ , 20___ , at Winnipeg, Manitoba.

_______________
Registrar

_______________
(Signature of Surety)

______________________________
(Address & Phone Number of Surety)

Form 7

(Rule 35)

DIRECTION FOR RELEASE

IN THE MATTER OF ______ (name of accused in full) ______ (D.O.B. D/M/Y) convicted on the ______ day of ______ , 20___ , of ______ (state the charge(s) in full) before ______ (name of judge) at the ______ (name of court) in ______ (court centre), and was sentenced on the ______ day of ______ , 20___ by ______ (name of judge) to ______ (sentence imposed) , and now in custody at ______ (name of institution or penitentiary).

An order having been made admitting the accused to judicial interim release pending the hearing and disposition of the appeal

upon the accused giving an undertaking

or

upon the accused entering into a recognizance subject to conditions and with sureties as ordered.

I now notify you that the accused, having been allowed judicial interim release, has the right to be released from custody (unless he/she is detained for some other cause), pending the hearing and disposition of the appeal.

DATED this ______ day of ______ , 20___ at Winnipeg, Manitoba.

TO: (The superintendent or warden of institution or penitentiary where the accused is in custody)

Footnote 1 

SI/92-106

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