Rules of the Court of Appeal of Quebec in Criminal Matters: SI/2018-96
Canada Gazette, Part II, Volume 152, Number 22
October 31, 2018
Rules of the Court of Appeal of Quebec in Criminal Matters
At a meeting held in Rivière-du-Loup on May 23, 2018, the judges of the Court of Appeal of Quebec, pursuant to section 482 of the Criminal Code (R.S.C. 1985, c. C-46), unanimously agreed to replace the Rules of the Court of Appeal of Quebec in Criminal Matters, SI/2006-142 with the Rules of the Court of Appeal of Quebec in Criminal Matters, hereinafter, as attested by the signature of the Chief Justice, these rules coming into force on January 1, 2019.
Nicole Duval Hesler
The Chief Justice of the Quebec Court of Appeal
PRELIMINARY PROVISIONS AND DEFINITIONS
1 These Rules are adopted pursuant to the Court’s powers in conformity with sections 482 and 482.1 of the Criminal Code (R.S.C. 1985, c. C-46) (Cr.C.).
2 These Rules are supplemental to the Criminal Code; they shall be interpreted and applied in the same manner.
3 The following definitions apply in these Rules:
Authorities means statutory or regulatory texts, case law, doctrine, or any extract therefrom (sources).
Brief means a document containing an argument and three schedules (mémoire).
Chief Justice means the Chief Justice of the Court of Appeal (Juge en chef).
Clerk means a public servant in the employ of the Ministère de la Justice, appointed to serve at the Court of Appeal pursuant to the Courts of Justice Act (CQLR, c. T-16) (Greffier).
Court means the Court of Appeal sitting as a panel of three judges, unless the Chief Justice increases that number (Cour).
Facilitation conference in criminal matters means a conference presided by a judge involving the parties’ lawyers for the purpose of seeking partial or definitive resolution of the appeal (conférence de facilitation pénale).
Fast-Track means the procedure followed in an appeal proceeding without briefs, within a reduced time limit (voie accélérée).
Judge means a judge of the Court of Appeal (Juge).
Management conference means a conference at which a judge presides in order to define the issues genuinely in dispute and to establish appropriate means to simplify the proceedings and reduce the duration of the hearing (conférence de gestion).
Motion means a written pleading formulating a request to the Court, a judge or the clerk, as the case may be (requête).
Offices of the Court means the two registries located at the two seats of the Court of Appeal at the Ernest Cormier Building, 100 Notre-Dame Street East, Montreal, Quebec, H2Y 4B6 and at 300 Jean-Lesage Boulevard, Quebec City, Quebec, G1K 8K6 (greffes).
Working day means weekdays, Monday to Friday, excluding the holidays enumerated at section 18 of the Code of Penal Procedure (CQLR, c. C-25.01) (jour ouvrable).
I – PUBLIC HEARINGS AND DECORUM
4 The dates on which the Court, a judge or a clerk sit are published on the Court’s website.
5 A court usher shall be present during all hearings. The usher is responsible for the opening and closing of each sitting and the orderly conduct thereof.
6 The judge presiding at a hearing shall take all necessary measures to ensure the maintenance of decorum and the respect of all those present.
7 Everyone present must turn off the sound of any electronic device in their possession.
8 Before the Court, the following dress is obligatory:
- (a) for counsel: a gown, bands, white collared shirt and dark garment;
- (b) for articling students: a gown and dark garment;
- (c) for clerks and court ushers: a gown and dark garment.
Simple and unadorned attire is sufficient before a judge or clerk.
Counsel appearing by videoconference at a hearing of the Court must be gowned.
II – CONFIDENTIALITY
9 The notice of appeal (for example, ss. 675(1)(a)(i) Cr.C. and 676(1)(a), (b) and (c) Cr.C.) and the motion for leave to appeal (for example, section 675(1)(a)(ii) and (iii) and (b) Cr.C. and section 676(1)(d) Cr.C.) shall include an express reference that the file contains no confidential information. If any part of a file is confidential, the pleadings shall include an express reference to this effect, clearly indicate which aspects of the file are confidential and set out the legal provision or order that is the basis of the confidentiality. The respondent shall indicate any correction it deems necessary.
Each pleading which refers to something confidential must call attention to confidentiality with the word “CONFIDENTIAL” written beneath the court record number.
10 In such files, only the following persons may consult confidential documents: the parties, their counsel, persons authorized by law, and those who, having established a legitimate interest, have obtained authorization from the Court or one of its judges, subject to the conditions and procedure so determined.
11 Red binding or a red band shall be used to indicate the confidential nature of a volume. The confidential portion of a brief shall be produced in a separate volume.
III – TECHNOLOGICAL MEANS
12 Unless exempted from doing so by the clerk, the parties shall attach a technological version as a USB key to each copy of their brief, or in an appeal proceeding along the fast-track to the documents filed in lieu of the brief. This version must permit keyword searches and include hyperlinks from the table of contents to the brief and from the argument to the schedules.
The USB key shall be identified in the same manner as a pleading (file number, designation of the parties, abbreviated title, references to confidentiality in red).
Management (art. 482.1 Cr.C.)
13 A party who has been authorized by a judge or by the Court to file Schedule III of its brief as a technological version only, is nevertheless required to file a single paper copy of the complete Schedule III for archival purposes.
The pagination of the technological version shall be identical to the paper version.
IV – OFFICES OF THE COURT
14 The Offices of the Court are open Monday to Friday, from 8:30 a.m. to 4:30 p.m., local time, unless provided otherwise. The days on which they are open are published on the Court’s website.
15 The clerk shall maintain a computerized register (docket), which shall include all relevant information for each file (contact information of the parties and their counsel, receipt of documents, matters arising during the appeal, etc.).
16 The clerk shall use the last known contact information of the parties and their counsel to contact them. The parties and their counsel must immediately advise the clerk of any change thereto. Counsel responsible for the file shall include their name, that of their law firm and all contact information (including email address, permanent code and locker number, where applicable) in each pleading. An unrepresented party shall provide the necessary contact information in the notice of appeal or motion for leave to appeal and in all subsequent pleadings.
Change of counsel or withdrawal of mandate
A party may change counsel by notification to the other parties, the clerk, and former counsel, of the name, address, telephone number and email address of new counsel. A party who no longer wishes to be represented by counsel shall so notify the other parties, counsel, and the clerk by notification including its complete contact information (including email, if available).
A change of counsel or the decision by a party to cease being represented by counsel has no impact on the hearing date unless a judge decides otherwise.
Access to a file
17 The clerk shall supervise the consultation of files and the removal of documents. The clerk may provide photocopies of documents that are not confidential upon payment of a fee.
V – PLEADINGS
18 Pleadings shall be drafted on good quality white letter paper (21.5 cm by 28 cm). The paper format may be 21.5 cm by 35.5 cm for documents filed with a motion or, in the case of an appeal proceeding on the fast-track, where the original exhibit is this size.
The text shall be reproduced on one side only of each sheet, with a minimum of one and one-half spaces between the lines, except for quotations which shall be single-spaced and indented. The typeface shall be 12-point Arial font for the entire text. Exceptionally, 11-point Arial font may be used for quotations and 10-point Arial font may be used for footnotes. The margins shall be no less than 2.5 cm.
All pleadings shall be signed by the party or that party’s counsel.
Designation of the parties
19 The following shall be indicated beneath the name of each party: their status in appeal in upper case letters, followed by the party’s status in first instance in lower case letters.
An intervener in first instance is designated as APPELLANT, RESPONDENT or IMPLEADED PARTY, depending on the circumstances. The designation “INTERVENER” is reserved for the party who intervenes only during the appeal.
In an appeal relating to extraordinary remedies, the status of a decision-maker contemplated by an application in Superior Court shall be IMPLEADED PARTY.
In an application for judicial review in extradition matters, the person whose extradition is sought is designated as the PETITIONER, the Minister who ordered the extradition is the RESPONDENT and the requesting State is the IMPLEADED PARTY.
20 The heading contained on the backing and the first page of the pleading (within a box if necessary) shall indicate the date, the filing party, the nature of the pleading and, if the pleading includes a request for an order, the precise provision on which it is based.
21 Any amendment to a pleading shall be identified either by vertical lines in the margin, by underlining or by indicating that text has been struck.
Service and notification
22 The parties shall serve or notify their pleadings and documents attached thereto in the manner set forth in the Code of Civil Procedure (CQLR, c. C-25.01). The notice of appeal and the motion for leave to appeal shall be served by bailiff or peace officer. Other pleadings shall be notified unless these Rules provide otherwise or if the relevant party chooses to serve the pleading.
VI – NOTICE OF APPEAL
Motion for Leave to Appeal and Preparation of the Record
(for example: ss. 675(1), 676(1) and 678 Cr.C.)
Time limit (s. 678(1) Cr.C.)
23 The notice of appeal and, if applicable, the motion for leave to appeal shall be served and filed within 30 days from the judgment. If the appellant or the applicant is the accused and is not represented by counsel, the clerk shall effect service by sending a copy of the pleading to the respondent. In the case of an appeal brought by the prosecutrix, the notice of appeal or the motion for leave to appeal must be served on the respondent personally, before or after the filing of the pleading, but no later than 15 days from that filing, unless a judge orders otherwise.
24 The notice of appeal and the motion for leave to appeal shall contain the following information:
- (a) the offence;
- (b) the sentence imposed, if applicable;
- (c) the date of the verdict, the judgment and the sentence, as the case may be;
- (d) the place and duration of the trial in days;
- (e) the trial court and file number as well as, where applicable, the file number of the Superior Court sitting in appeal;
- (f) the facts and the grounds of appeal stated concisely, in a maximum of 10 pages (the designation of the parties and the conclusions sought being excluded from the page count);
- (g) the address and, if available, the email address of the appellant and the appellant’s counsel;
- (h) the name, address and, if available, the email address of the respondent and, if applicable, of the other parties and their counsel at trial.
Number of copies
25 The original of the notice of appeal or the motion for leave to appeal shall be filed at the appropriate Office of the Court, together with three or four copies, as the case may be (one copy thereof for the clerk, two copies for the office of the trial court, and, if the appellant is not represented by counsel, one copy for the respondent). Where notice is required to be given to the Attorney General pursuant to articles 76 to 78 of the Code of Civil Procedure (CQLR, c. C-25.01), that notice is delivered in accordance with the procedure set out in those articles.
Delivery by the clerk
26 The clerk shall deliver two copies of the notice of appeal or of the motion for leave to appeal, once leave has been granted, to the office of the trial court. If the appellant is the accused and is not represented by counsel, the clerk shall also deliver one copy, as soon as it is filed, to the offices of the prosecutor in the appeal district in which the trial took place or to the offices of counsel who represented the prosecutrix at trial, as well as to the other parties, where applicable.
Motion for leave to appeal granted
27 When a motion for leave to appeal has been granted, it shall serve as the notice of appeal without further formality.
Clerk of the trial court
Upon receipt of the copies of the notice of appeal or, once it is granted, the motion for leave to appeal, the clerk of the trial court shall deliver a copy to the judge who presided at trial or who rendered the judgment under appeal.
28 Counsel for a party other than the appellant shall file a written appearance within 10 days of the filing of the notice of appeal or the judgment granting leave to appeal or, the judgment referring the motion for leave to the Court.
Transcript of trial proceedings
29 At the request of the appellant, the clerk of the trial court shall take all necessary steps to obtain, as soon as possible, the complete transcript of the proceedings and the exhibits, unless the parties waive in whole or in part their right to a transcript or the exhibits, or agree to a joint statement of the facts. If the parties agree to a joint statement of facts instead of a transcript, they shall inform the clerk of the trial court as soon as possible who shall then proceed pursuant to section 30.
Unless one of the parties requires otherwise, or unless otherwise ordered by a judge, the following shall be omitted from the transcript:
- (a) proceedings regarding jury selection;
- (b) the opening address of the trial judge;
- (c) the opening and closing addresses of counsel;
- (d) evidence adduced in the absence of the jury and submissions made by counsel in the absence of the jury, except :
- (i) submissions regarding the proposed content of the judge’s instructions to the jury, as well as the trial judge’s determination thereupon and reasons given,
- (ii) objections regarding the jury instructions, as well as the trial judge’s determination thereupon and reasons given,
- (iii) submissions regarding questions raised by the jury, as well as the trial judge’s determination thereupon and reasons given.
- (e) objections to the admissibility of evidence, except a notation of the objection, the trial judge’s determination thereupon and, if available, the reasons given.
An appellant who asks a private stenographer to prepare the transcript shall so advise the respondent and the clerk of the trial court. The appellant shall also inform them when the transcript is completed so that the clerk of the trial court may proceed pursuant to section 30.
Delivery of trial proceedings
Trial proceedings shall be delivered to the Office of the Court only at the request of a judge.
Notice to the Clerk
30 The clerk of the trial court shall inform the parties and the clerk of the Court of Appeal that the record on appeal is complete, including the exhibits, whereupon the appellant may then take immediate possession of the record. The clerk of the trial court shall also inform the clerk of the Court of Appeal if the parties waive, in whole or in part, their right to a transcript.
Payment of costs
If the preparation of a transcript or its translation incurs costs, the clerk of the trial court may require payment in advance and, in any event, the appellant shall not be entitled to the transcript until those costs have been paid. The prosecutrix pays the costs of whatever portion of the transcript that it alone requires.
VII – INTERIM RELEASE FROM CUSTODY (S. 679 CR.C.)
31 An appellant seeking interim release shall attach an affidavit to the application attesting to the following:
- (a) the appellant’s places of residence in the three years prior to conviction and the place the appellant intends to reside if released;
- (b) if applicable, the appellant’s employment before conviction, and the appellant’s intended employer and employment if released;
- (c) if applicable, the appellant’s previous convictions, including convictions outside Canada;
- (d) if applicable, any charges pending against the appellant, in Canada and elsewhere, at the time of the application;
- (e) whether or not the appellant holds a Canadian or foreign passport or has a pending passport application.
Exemption from affidavit
The judge to whom the application is presented may waive the filing of an affidavit and rely upon a statement of facts signed by the appellant’s counsel and counsel for the respondent.
Release pending appeal to the Supreme Court
An application for interim release pending an appeal to the Supreme Court of Canada shall be accompanied by a certificate of the registrar of that court attesting that an application for leave to appeal or a notice of appeal has been filed.
VIII – APPEAL MANAGEMENT (S. 482.1 CR.C.)
Request for case management
32 A party requesting a case management conference shall, as soon as possible, so inform the clerk by letter setting out the grounds for the request. A judge may initiate and preside over such a conference, or do so at the request of a party.
33 The Court may make any order required in the interests of justice.
A party may apply to the Chief Justice, or to a judge designated by the Chief Justice, to request directions in relation to the conduct of an appeal.
The Chief Justice, or a judge designated by the Chief Justice, may, in the interests of justice, make any order and take any measure to accelerate the conduct of an appeal.
34 When the Court or one of its judges has not so ordered, pursuant to section 688 Cr.C., a party who wishes to be heard by technological means (teleconference or videoconference) shall request a remote hearing by letter to the clerk. The judge presiding the hearing shall decide whether or not to grant the request.
The parties shall take the necessary steps for the hearing to be held remotely.
The costs of a remote hearing, if applicable, shall be assumed by the party who made the request, unless the clerk exempts the party therefrom.
Written consent of the accused must be obtained for any videoconference not ordered by the Court pursuant to section 688 Cr.C.
Counsel appearing by videoconference at a hearing of the Court must be gowned.
IX – BRIEFS
35 The appellant’s brief shall include its argument and three schedules; that of the respondent includes its argument and, if necessary, elements in addition to those in the appellant’s schedules.
36 Each argument shall be divided into five parts:
- (a) Part I (Facts): the appellant shall succinctly state its position and recite the facts. The respondent may comment and relate additional facts.
- (b) Part II (Issues in dispute): the appellant shall concisely state the issues in dispute. The appellant who wishes to raise questions of law not stated in the notice of appeal shall state and clearly set forth those grounds. If the appellant wishes to raise questions of fact or mixed questions of fact and law not stated in the notice of appeal or motion for leave to appeal, the appellant shall first request permission to do so in writing and obtain leave from a judge, unless the judge refers the matter to the panel that will hear the appeal. The respondent shall respond to the questions raised by the appellant and may raise any further questions that the respondent intends to debate, including those questions that the trial court rejected or did not consider.
- (c) Part III (Submissions): each party shall develop its submissions, with specific reference to the content of the schedules. If the respondent seeks the application of section 686(1)(b)(iii) Cr.C., the respondent shall refer to that section and set forth submissions of fact and of law to that effect.
- (d) Part IV (Conclusions): each party shall state the precise conclusions it seeks.
- (e) Part V (Authorities): each party shall prepare a list of authorities in the order in which they appear in the argument, making specific reference to the paragraphs at which they are cited.
Joint statement of facts
37 The parties may agree to a joint statement of facts in place of transcripts of the depositions and exhibits, or of a part thereof. The appellant shall produce this joint statement at the beginning of Schedule III.
Number of pages
38 Parts I to IV of the argument may not exceed 30 pages, unless a judge decides otherwise.
39 The schedules to the appellant’s brief shall include:
- (a) Schedule I: the judgment under appeal, including the reasons given and, in the case of a decision regarding an extraordinary remedy or an appeal from a judgment of the Superior Court sitting in appeal, the decisions of the lower courts;
- (b) Schedule II:
- (i) the notice of appeal and, if applicable, the motion for leave to appeal and the judgment granting leave;
- (ii) the indictment and the minutes of the hearing on the merits at trial;
- (iii) all applicable statutory and regulatory provisions, in both official languages, if available, other than those in the Constitution Act, 1982 (being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11), the Criminal Code (R.S.C. 1985, c. C-46), the Controlled Drugs and Substances Act (S.C. 1996, c. 19), the Canada Evidence Act (R.S.C. 1985, c. C-5), the Interpretation Act (R.S.C. 1985, c. I-21), and the Youth Criminal Justice Act (S.C. 2002, c. 1);
- (c) Schedule III: those exhibits and depositions or extracts thereof necessary for the Court to decide the issues in dispute.
40 On the last page of the brief, the author shall:
- (a) attest to the brief’s conformity with these Rules;
- (b) undertake to make available to any other party, at no cost, the depositions obtained in paper or technological format;
- (c) indicate the time requested for oral argument including, in the case of the appellant, the reply.
41 The brief shall be formatted in compliance with the following rules:
- (a) The cover page shall be yellow for the appellant, green for the respondent and gray for any other party.
- (b) The following shall be indicated on the cover page:
- (i) the record number in appeal;
- (ii) the trial court or, where applicable, the Superior Court sitting in appeal, the judicial district, the name of the judge, the date of the judgment and the record number;
- (iii) the designation of the parties (see s. 19 of these Rules);
- (iv) the brief heading by reference to the status of the party in appeal (see s. 20 of these Rules);
- (v) the name and contact information of its author (who signs the attestation) as well as those of counsel for the other parties. If there is insufficient space, the names and contact information of other counsel shall be indicated on the following page.
Table of contents
- (c) The first volume of the brief shall begin with a general table of contents and each subsequent volume shall begin with a table of its contents.
- (d) Brief page numbers shall be consecutive and centered at the top of the page.
Spacing, typeface and margins
- (e) The text of the argument shall have at least one and one-half spaces between the lines, except for quotations which shall be single-spaced and indented. The typeface shall be 12-point Arial font for the entire text. Exceptionally, 11-point Arial font may be used for quotations and 10-point Arial font may be used for footnotes. The margins shall be no less than 2.5 cm.
Numbering of paragraphs
- (f) The paragraphs of the argument shall be numbered.
- (g) The argument and schedule I shall be printed on the left-hand side of the volume, the other schedules shall be printed on both sides.
Number of pages
- (h) Each volume shall be composed of a maximum of 225 sheets.
- (i) Each volume shall be numbered on the cover page and its bottom edge. The sequence of pages it contains shall also be printed thereon.
- (j) All exhibits shall be legible. The exhibits shall be reproduced consecutively as they are numbered. Each exhibit shall be reproduced beginning on a new page that includes the exhibit number, date and nature of the exhibit. Photocopies of photographs are permitted only if they are clear. If a handwritten document is illegible, it may be accompanied by a transcription.
- (k) Each deposition shall begin on a new page and mention in the title the surname of the witness (in upper case letters), followed by the witness’ given name, age and place of residence (in lower case letters), if these details were provided, as well as the following information in abbreviated form (in parentheses):
- (i) the status of the party who called the witness;
- (ii) the stage of the trial (case in chief, defence, rebuttal);
- (iii) the stage of the examination (examination-in-chief, cross-examination, re-examination).
- The title of each following page shall restate the witness’ name and the information in abbreviated form.
- (l) Depositions may be reproduced on paper with four pages printed on one page, using 10-point Arial font or its equivalent. The four pages shall contain a maximum of 25 lines, numbered on the left-hand side of the page, and be in vertical sequence. The entire page itself shall have only one title (corresponding to the commencement of the text).
Copies and notification
42 Within 60 days from the date of the notice required by section 30 of these Rules, the appellant shall file seven copies on paper and, in compliance with section 12 of these Rules, as a technological version. Within the same time limit, the appellant shall also notify two further copies on paper and one copy of the technological version to the respondent. Proof of notification shall be filed with the Office of the Court no later than three working days following the expiry of the 60-day time limit set forth in this section. If the appellant fails to file its brief and proof of notification within the time limit stipulated in this section, the Court may, of its own initiative or by motion, dismiss the appeal pursuant to the procedure set forth in section 75 of these Rules.
Within 60 days from the filing of the appellant’s brief, the respondent shall file seven copies of its brief on paper and, in compliance with section 12 of these Rules, of the technological version. Within the same time limit, the respondent shall also notify two further copies on paper and one copy of the technological version to the appellant. Proof of notification shall be filed in the Office of the Court no later than three working days following the expiry of the 60-day time limit set forth in this section. If the respondent fails to file its brief and proof of notification within the time limit stipulated in this section, the appellant may request, in writing, that the appeal be placed on the roll. The clerk may also initiate a declaration that the file is ready to proceed and place the file on the roll. The clerk shall so advise the parties, in writing.
43 If a brief does not comply with the foregoing requirements, the clerk shall advise its author of the corrections required and establish a time limit within which a corrected brief may be filed. The clerk shall so advise the other parties.
Failing correction, the brief shall be refused. The clerk’s decision may be reviewed by a judge upon a motion filed within 10 days of the refusal.
X – BOOK OF AUTHORITIES
Book of authorities
44 Each party may file a book of authorities (statutory and regulatory provisions, case law and doctrine), printed on both sides of each page and tabbed. Relevant extracts shall be identified by underlining, highlighting or by vertical lines in the margin.
The text of judgments of the Supreme Court of Canada must be that which is published in its reports (or that which is available prior to such publication).
Case law or doctrine may be limited to relevant extracts (along with the preceding and succeeding page) together with the headnote (if available).
The cover page of each volume of the book of authorities shall indicate the record number in appeal, the designation of the parties, the title and the status of the filing party (“[Party’s Status]’s Book of Authorities”).
If a technological version of the book of authorities is filed on a USB key (pursuant to a case management decision or as a complement to a paper version), that version shall be searchable by keyword.
Judgments deemed to be included in a book of authorities
45 The Court shall publish a list of judgments that the parties need not reproduce in their book of authorities. The list shall be available at the Office of the Court and on its website.
46 Four copies of the book of authorities (in one or more volumes) shall be filed for a panel and only one copy for a judge or clerk. The book of authorities shall be notified and filed 30 days before the hearing of an appeal and as soon as possible prior to the hearing of a motion.
XI – MOTIONS
Presentation and content
47 Motions shall not exceed 10 pages, excluding the designation of the parties and the conclusions sought, and shall be accompanied by all documents necessary for their adjudication (pleadings, judgments including reasons, exhibits, depositions, minutes, laws and regulations, or extracts of these documents, etc.). Motions presented to the Court shall be filed in four copies; motions presented to a judge or to the clerk shall be filed in two copies.
A party may apply to be excused from filing paper copies of the documents that accompany the motion, or certain of those documents, if all the parties to the motion consent to their being filed as a technological version on a USB key. The request shall be made in writing and addressed to the Office of the Court, with a copy to the other parties, and decided upon by a judge in the case of a motion presented to the Court or to a judge, or by the clerk in the case of a motion presented to the clerk.
48 Any motion alleging facts that do not appear in the record shall be supported by the affidavit of a person who has personal knowledge of those facts.
49 On the Court’s website the clerk shall publish the calendar of hearing dates for motions before the Court, a judge or the clerk. The applicant must reserve a date with the clerk for the presentation of a motion before the Court.
Service, notification and notice of presentation
50 A motion shall be accompanied by a notice of presentation and shall be notified, or served in the case of a motion for leave to appeal, with the attached documents. A motion presented to the Court shall be filed at the Office of the Court at least five working days prior to its presentation date; motions presented to a judge or to the clerk, at least two working days before that date. In all cases, the time limits are calculated excluding Saturdays. In addition to the date and time, the notice of presentation shall indicate the courtroom where the motion will be presented.
Motion to dismiss
Where a motion to dismiss an appeal is presented by the prosecutrix, it shall be served on the appellant personally, unless a judge orders otherwise, and to the appellant’s counsel, if applicable.
Assignment of counsel (s. 684 Cr.C.)
A motion presented to the Court seeking assignment of counsel shall be served on the Attorney General.
Time of presentation
51 A motion presented to the Court or a judge shall be presentable at 9:30 a.m., and that to the clerk at 9:00 a.m. The clerk may change the time at which a motion is presented.
Incomplete or irregular motion
52 The clerk shall notify the applicant if a motion is incomplete. If the applicant does not remedy the default within the prescribed time limit prior to its presentation, namely five days or two working days, as the case may be, the clerk shall postpone the motion to a later date and so advise the parties.
Before the hearing, a judge may strike a motion from the roll if it is irregular on its face. The clerk shall so inform the parties.
Party excused from attendance
53 Except in the case of the interim release of the appellant, a party who declares that a motion will not be contested may request, in writing addressed to the clerk, to be excused from attendance at the hearing.
54 In the event that a party fails to appear on the day and at the time set for the presentation of the motion, the Court, the judge or the clerk may choose to hear only the parties in attendance and adjudicate the matter without hearing the absent party or, alternatively, to adjourn the hearing subject to specified conditions.
55 Where appropriate and the parties so consent, a motion may be heard by teleconference or videoconference.
Request for adjournment
56 A party seeking an adjournment shall, as soon as possible, so inform the judge presiding the panel, the judge or the clerk who shall grant or dismiss the request or postpone the decision until the beginning of the hearing. In the request, the party shall indicate the reason the adjournment is sought and whether or not the other parties consent thereto.
Motion to adduce fresh evidence (s. 683(1) Cr.C.)
57 A party seeking leave to adduce fresh evidence shall first present a motion and explain in what manner the party has exercised due diligence in obtaining the evidence, in what respect it is relevant, credible and, if believed, could be expected to affect the result.
Notice and terms
A party presenting such a motion shall inform the other parties as soon as possible, and shall attempt to reach an agreement with them regarding the timetable and terms that will govern the exchange of relevant documents and cross-examinations, if applicable. The proposed timetable and terms shall be submitted to the Court.
Once seized of the motion, the Court shall first authorize or refuse the filing of fresh evidence and determine, if applicable, the terms and timetable according to which the evidence will be gathered and, if applicable, cross-examinations undertaken. The Court shall determine the admissibility of this evidence once seized of the appeal on the merits.
XII – APPEAL FROM SENTENCE
58 Where there is no application for interim release, the applicant may choose to present a motion for leave to appeal from a sentence either to a judge or to the Court. Where there is a motion for interim release, the motion for leave is presented to a judge who retains discretion to refer the latter motion to the Court without deciding on the matter.
Where the applicant presents the motion for leave to the Court, the parties shall immediately contact the clerk who shall, at the appropriate time, set the hearing date, which will be the same date as the hearing for the appeal from the verdict, if applicable. Unless the Court decides otherwise, the hearing shall bear on both the motion for leave and, in the event the motion is granted, on the merits of the appeal. The clerk shall establish a timetable for the production of the documents required according to the fast-track procedure.
59 If a judge grants the motion for leave to appeal or refers it to the Court, the proceedings shall be undertaken, without briefs, on the basis of the fast-track procedure.
The judge shall establish a timetable for the filing, in five copies and after notification to the other party, of the documents that stand in lieu of the brief. The Court may, where it deems appropriate, hear the motion for leave and the appeal at the same time and adjudicate the matter, without briefs. It may also choose to decide the motion only and, if leave is granted, adjourn the hearing of the appeal.
If the documents are not filed before the expiration of the time limit established by the judge or the clerk, the clerk shall file a certificate of default in the record and shall thereafter refuse any documents from the defaulting party. The clerk shall so inform the Chief Justice and the judges who are to hear the motion for leave or the appeal.
Documents that must be filed
60 The appellant shall file the following documents:
- (a) the motion for leave to appeal and the judgment granting the motion or referring it to the Court, as the case may be;
- (b) the indictment;
- (c) the sentence, including the reasons and the conclusion;
- (d) the depositions from the sentencing hearing and the exhibits, if any;
- (e) any other relevant remarks of the trial judge and the parties made in the course of submissions as to the sentence;
- (f) the questionnaire, available in the Office of the Court or on the Court’s website, duly completed.
The respondent may also notify the duly completed questionnaire to the appellant and file five copies of the questionnaire with the Office of the Court, no later than 21 days before the date of the hearing of the motion for leave or the appeal.
The parties may attach to their documents arguments not exceeding 10 pages with at least one and one-half spaces between the lines, except for quotations, which shall be single-spaced and indented. The typeface shall be 12-point Arial font for the entire text. Exceptionally, 11-point Arial font may be used for quotations and 10-point Arial font may be used for footnotes. The margins shall be no less than 2.5 cm.
A judge may order that such arguments be prepared when the issues raised by the appeal so warrant.
The judge or the Court may authorize the filing of certain documents required to constitute the file as a technological version on a USB key rather than on paper. The parties shall then file a paper version of the argument; the motion for leave to appeal and the judgment granting leave or referring the motion to the Court, as the case may be; the indictment; the sentence, including the reasons given and the conclusion; as well as those parts of the documents to which they refer specifically in their arguments. The complete texts of the documents shall then be filed as a technological version on a USB key.
XIII - INEFFECTIVE ASSISTANCE OF COUNSEL
Allegation of ineffective assistance of counsel
61 An appellant or a petitioner who alleges the ineffective assistance of counsel who acted on his or her behalf at trial or on appeal in the Superior Court shall inform that counsel by notification of a copy of the written pleadings containing the allegation. The parties shall complete the required form, available in the Office of the Court and on the Court’s website, within the time limit stipulated on that document.
Response from counsel
If counsel in question wishes to respond, that counsel shall inform the Chief Justice in writing, with a copy to the parties, and shall describe the means counsel considers appropriate to respond to the allegations.
At a management conference, a judge may endeavour to secure the parties’ agreement on the means by which the evidence will be adduced or, if necessary, impose such conditions and a timetable.
Fresh evidence (s. 683(1) Cr.C.)
The parties shall present the appropriate motions in order to be authorized to file fresh evidence.
XIV – FACILITATION CONFERENCE IN CRIMINAL MATTERS
62 Parties represented by counsel who wish to hold a facilitation conference in criminal matters must complete the form available at the Office of the Court and on the Court’s website. The judge who presided the conference may require the parties to furnish any necessary documents. Filing the completed form with the Office of the Court suspends the time limits applicable to the appeal proceedings.
Only counsel shall participate in the conference unless the judge, with the consent of the parties, has authorized another person to participate. The judge shall facilitate the discussion and encourage dialogue, neither of which shall be recorded.
Counsel shall undertake in writing to keep the content of the discussions confidential. If the conference results in a solution, the judge presiding at the facilitation conference in criminal matters may be a member of the panel of the Court that renders judgment. Where no solution is reached, the judge presiding at the conference shall not participate in a hearing of the appeal.
XV – ROLLS
Declaration of readiness
63 When a hearing date has not been previously set by the Court, a judge or the clerk, and the appeal file is ready to be heard, the clerk shall issue a declaration of readiness and send it to counsel and parties not represented by counsel.
64 The clerk shall prepare hearing rolls following, to the extent possible, the chronological order of such declarations of readiness, subject to preferences set by law or by order. On the roll, the clerk shall indicate the time allocated to each party for oral argument, including the reply.
Orders of preference
65 The Chief Justice or the judge the Chief Justice designates for this purpose may order, ex officio or upon request, that a case be heard by preference. A motion for preference shall be presented at the date and time agreed to with the clerk. It shall be notified to the other parties and filed at the Office of the Court at least two working days before its presentation.
Notice of hearing
66 The clerk shall inform counsel and unrepresented parties of the date set for a hearing by sending them a copy of the roll at least 30 days in advance. The roll shall also be available at the Office of the Court and on the Court’s website.
XVI – HEARINGS OF THE COURT
Order of hearing
67 Hearings of the Court begin at 9:30 a.m. The clerk may convene the parties at a different time for the hearing of their appeal. Cases are heard in the sequence they appear on the roll. A case may proceed in a party’s absence.
68 A party’s oral argument (but not the reply) may be divided between two counsel. At the hearing of a motion, each party may call only one counsel, except with leave.
Outline of oral argument
69 At the beginning of a hearing, a party may produce an outline of its oral argument, not exceeding two pages, and may attach to it extracts (with tabs) from its brief and the authorities to which it intends to refer during oral argument.
70 Reproduction of a technological version of oral arguments is available upon payment of the applicable fee; recording of a judgment must be authorized (the form for which is available at the Office of the Court and on the Court’s website).
71 A party seeking an adjournment shall, as soon as possible, so inform the judge presiding the panel who shall grant or dismiss the request or postpone the decision until the beginning of the hearing. In the request, the party shall indicate the reason the adjournment is sought and whether or not the other parties consent thereto.
Waiver of hearing
72 By consent, the parties may request that an appeal be decided on the basis of the briefs alone, without a hearing. The Court may require that the accused personally consent to the waiver.
The clerk shall inform the parties of the date on which the appeal is taken under advisement and the names of the judges assigned to the case.
If the panel responsible for adjudicating the appeal decides that a hearing is necessary, the parties shall be informed that the case is no longer under advisement and that the appeal has been returned to the general roll.
Deposit of judgment
73 When a judgment is deposited, the clerk shall send a copy thereof to the parties or their counsel as well as to the first instance judge and, where applicable, to the judge of the Superior Court who sat on appeal or in judicial review.
74 An appellant who wishes to discontinue the appeal shall file a notice of discontinuance signed by the appellant or the appellant’s counsel. Where signed by the appellant, the appellant’s signature shall be certified by affidavit or endorsed by counsel, or if the appellant is detained, by an officer of the detention facility. If the appellant is subject to interim release, the appellant must surrender to the appropriate custodial authorities within three days of filing the discontinuance, or if on probation or serving a conditional sentence of imprisonment, notify the discontinuance to the probation officer or supervision officer within the same time limit.
A judge may confirm the discontinuance, even in the absence of the parties or of their counsel.
75 If the appeal is not ready to be placed on the roll within six months following the filing of the notice of appeal provided for in section 30, or one year following the filing of the notice of appeal or from the date of the judgment granting leave to appeal, the clerk may inscribe the case on a special roll and, to this end, shall provide at least 30 days’ notice to the parties. If the party is not represented by counsel, the notice shall be sent by registered mail.
If the appeal is not ready to be placed on the roll on the date mentioned in the notice, the Court, after providing the parties an opportunity to be heard, may declare the appeal abandoned, declare the appeal ready to be placed on the roll or declare that the respondent is foreclosed from pleading unless the party in default can show valid cause, in which case the Court shall make the order it deems appropriate.
XVII – MISCELLANEOUS PROVISIONS
Application of the Rules
76 These Rules shall apply, mutatis mutandis, to all proceedings brought before the Court that are contemplated in sections 482 and 839 Cr.C.
77 Any time limit set by these Rules may be extended or shortened by the Court, by a judge or by the clerk, either before or after the expiry thereof.
78 The clerk may excuse a party from compliance with a provision of these Rules if the circumstances so justify. In such cases, the clerk shall advise the other parties accordingly and make a note in the court record.
Clerk’s practice direction
79 The clerk may publish a practice direction to explain or render more precise these Rules or their practice before the Court.
Notice of amendment
80 The Chief Justice may inform counsel of a proposed amendment to a rule and invite them to apply it immediately as if it were in force.
Application of the Code of Civil Procedure
81 Except where incompatible with the Criminal Code (R.S.C. 1985, c. C-46) or these Rules, the provisions of the Code of Civil Procedure (CQLR, c. C-25.01) and the Civil Practice Regulation (Court of Appeal) (CQLR, c. 25.01, r. 10) shall apply to appeals in criminal matters.
XVIII – TRANSITIONAL PROVISION
82 The Rules applicable before the coming into force of these Rules shall continue to apply to all proceedings for which the notice of appeal or the motion for leave to appeal was filed before the date of the coming into force of these Rules. The parties may nevertheless agree to have their appeal be governed by these Rules.
XIX – COMING INTO FORCE
Coming into force
83 These Rules replace the Rules of the Court of Appeal of Quebec in Criminal Matters (SI/2006-142) and shall come into force on January 1, 2019.