Acts and Regulations

Rule-63 - CRIMINAL APPEALS TO THE COURT OF APPEAL

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Current to 1 January 2024
APPEALS
RULE 63
CRIMINAL APPEALS TO
THE COURT OF APPEAL
85-5
63.01Application of Rule
This rule applies to appeals to the Court of Appeal under the Criminal Code (Canada).
SI/94-41
63.02Interpretation and Definitions
(1)Unless the context requires otherwise, the interpretation and definition sections of the Criminal Code apply to this rule.
(2)In this rule, unless the context requires otherwise
appeal includes a cross-appeal;
clerk means the clerk of The Court of King’s Bench for the judicial district in which the trial was held;
Judge means a Judge of the Court of Appeal;
Notice of Appeal includes notice of cross-appeal;
penal institution includes a penitentiary as defined in the Corrections and Conditional Release Act (Canada) and a correctional institution as defined in the Corrections Act;
prisoner appeal means an appeal by a person who, when the notice of appeal is given, is in custody and is not represented by counsel;
Registrar means the Registrar of the Court of Appeal and includes a deputy registrar of the Court of Appeal;
trial decision includes the conviction, judgment or verdict of acquittal, sentence or order against which an appeal may be taken;
trial judge means the judge who presided at the trial in the trial court.
(3)The address of the Registrar is The Registrar, The Court of Appeal, Justice Building, Queen Street, P.O. Box 6000, Fredericton, N.B. E3B 5H1.
SI/94-41; NBCA, 2022-12-22 (see Appendix G)
63.03Leave to Appeal
Where leave to appeal is required, the Notice of Appeal shall contain an application for leave to appeal.
63.04Commencement of Appeal
(1)An appeal shall be commenced by issuing a Notice of Appeal and
(a) if the appeal is under Part XXI of the Criminal Code
(i) Notice of Appeal by the Attorney General or counsel instructed by him shall be in Form 63A,
(ii) Notice of Appeal by a convicted person represented by counsel shall be in Form 63B,
(iii) Notice of Appeal by a convicted person not represented by counsel shall be in Form 63C, and
(b) in all other cases a Notice of Appeal shall be in Form 63D.
(2)A party who proposes to appeal to the Court of Appeal shall issue a Notice of Appeal within 30 days from the date of the trial decision or the date of sentencing, whichever is later, or such extended time as the Court of Appeal or a Judge allows.
(3)A Notice of Appeal shall state the relief sought and the grounds of appeal including particulars of
(a) any evidence the appellant contends was wrongfully admitted or excluded, and
(b) any misdirection or nondirection by the trial judge.
SI/93-198; SI/94-41
63.05Issue and Service of Notice of Appeal
(1)Subject to paragraph (2) a Notice of Appeal is issued when the original and 3 copies
(a) are filed in the office of the Registrar, or
(b) are sent by prepaid registered mail or prepaid courier addressed to the Registrar at the address set out in Rule 63.02(3).
(2)Where the appellant is a prisoner in a penal institution and is not represented by counsel, a Notice of Appeal is issued when the original and 4 copies are served on the senior officer of the institution in which the appellant is imprisoned.
(3)When the senior officer of a penal institution is served with a Notice of Appeal under paragraph (2) he shall
(a) endorse the date of service on all copies of the Notice of Appeal,
(b) return a copy so endorsed to the appellant, and
(c) forward the original and the other 3 copies to the Registrar.
(4)Upon receiving a Notice of Appeal the Registrar shall
(a) assign to the Notice of Appeal a Court of Appeal file number,
(b) enface on the original and copies the file number and date of issue,
(c) forward a copy to
(i) the clerk of the court, if the trial was held in The Court of King’s Bench, or
(ii) the trial judge, if the trial was held in the Provincial Court,
(d) if the appellant is an accused or a defendant
(i) retain and file the original,
(ii) forward a copy to the Attorney General, and
(iii) return a copy to the appellant,
(e) if the appellant is the Attorney General or counsel instructed by him, or an informant
(i) return the original to the appellant, and
(ii) retain and file a copy.
(5)Where the appellant is an accused or a defendant the forwarding by the Registrar to the Attorney General of a copy of the Notice of Appeal is deemed to be service on the respondent.
(6)An appellant who is not an accused or defendant shall, within 15 days after the Notice of Appeal is issued or such extended time as the Court of Appeal or a Judge allows, serve the Notice of Appeal on the respondent or such other person as a Judge directs, in the manner prescribed by Rule 18 for the service of originating process or in such manner as a Judge directs.
(7)Where a convicted person not represented by counsel commences an appeal and subsequently retains counsel, the counsel shall immediately give written notice to the respondent and to the Registrar of his retention and his address for service.
SI/94-41; NBCA, 2022-12-22 (see Appendix G)
63.06Cross-Appeals
A respondent may, within 15 days after a Notice of Appeal has been served upon him, issue and serve a Notice of Cross-Appeal upon the appellant in the same manner as a Notice of Appeal is served under Rule 63.05.
63.07Transcript of Evidence
(1)Except in a prisoner appeal, an appellant shall, forthwith after issuing a Notice of Appeal, forward to the clerk of the judicial district in which the proceeding was commenced a written request for preparation of the transcript required by subsection 682(2) of the Criminal Code to be furnished to the Court of Appeal.
(2)Subject to paragraph (3) in a prisoner appeal where the person appealing has a right of appeal or has been granted leave to appeal the Attorney General shall, forthwith after receiving the Notice of Appeal, forward to the clerk of the judicial district in which the proceeding was commenced a request for preparation of the transcript.
(3)Unless the Court of Appeal or a Judge orders otherwise, where an appeal is against sentence only the transcript shall be limited to
(a) evidence given and submissions made on the issue of sentence, and
(b) the reasons for sentence given by the trial judge.
(4)The parties to an appeal may agree in writing or a Judge may, on motion, order that part of the transcript be omitted.
(5)The parties to an appeal may agree to a Statement of Facts in place of a transcript of evidence and the exhibits.
(6)Where an agreement or order is made under paragraph (3), (4) or (5) the appellant or Attorney General shall modify or withdraw his request for preparation of a transcript.
(7)When the evidence has been transcribed, the court stenographer shall forthwith
(a) forward the original transcript to the Registrar, and
(b) notify
(i) the parties to the appeal, and
(ii) the clerk, if the trial was held in The Court of King’s Bench, or
(iii) the trial judge, if the trial was held in the Provincial Court.
(8)Unless ordered otherwise, within 15 days after being notified that the evidence has been transcribed
(a) the clerk, if the trial was held in The Court of King’s Bench, or
(b) the trial judge, if the trial was held in the Provincial Court,
shall forward to the Registrar the original file.
(9)A party to an appeal shall pay the fees prescribed under the Recording of Evidence Act for a copy or transcript of any material prepared under subsection 682(2) of the Criminal Code.
SI/94-41; SI/97-125; SI/2010-29; NBCA, 2022-12-22 (see Appendix G)
63.08Exhibits
(1)Unless provided otherwise by the Criminal Code and subject to paragraphs (2), (3) and (4), a trial court shall retain all exhibits received in a trial or hearing the disposition of which may be appealed to the Court of Appeal
(a) where no appeal is taken, until 90 days after the expiry of the time for giving a Notice of Appeal or any extension thereof, or
(b) where an appeal is taken, until
(i) the appeal is abandoned,
(ii) 30 days after the time limited for taking an appeal to the Supreme Court of Canada, or any extension thereof, or
(iii) final disposition of the appeal by the Supreme Court of Canada,
and shall then return the exhibits to the parties by whom they were produced at the trial or hearing.
(2)Where an appeal is taken, a Judge or the Registrar may at any time prior to disposition of the appeal request the trial court to forward all or any of the exhibits to the Court of Appeal.
(3)The clerk, if the trial or hearing was in The Court of King’s Bench, or the trial judge, if the trial or hearing was in the Provincial Court, shall comply with a request made under paragraph (2).
(4)When exhibits have been forwarded to the Court of Appeal the Registrar shall, after the appeal is disposed of, return the exhibits to the trial court or to the parties by whom they were produced at the trial or hearing.
(5)Where a party refuses to accept return of any exhibits the custodian thereof may, on 10 days notice to that party, apply to a judge of the trial court for an order for disposal of the exhibits by destruction or otherwise.
(6)Nothing in this subrule affects any Act relating to exhibits or things seized or forfeited.
NBCA, 2022-12-22 (see Appendix G)
63.09Report of Trial Judge
(1)Where an appeal is against sentence and in any other appeal when so directed by the Court of Appeal or a Judge the Registrar shall, on behalf of the Court of Appeal and pursuant to subsection 682(1) of the Criminal Code, request the trial judge to forward to him for the use of the Court of Appeal a report on the case in general and, in particular, on the matters raised in the Notice of Appeal.
(2)Upon receiving a report of a trial judge pursuant to this subrule or pursuant to any request of the Court of Appeal or a Judge, the Registrar shall mail copies thereof to the parties to the appeal or their counsel.
SI/94-41
63.10Appeal Book
(1)Subject to paragraph (3), the appellant shall prepare an Appeal Book which shall contain, in the following order, and where applicable
(a) an index,
(b) a copy of the Notice of Appeal and Notice of Cross-Appeal,
(c) a copy of any order granting leave to appeal,
(d) a copy of any order respecting conduct of the appeal,
(e) a copy of the information or indictment,
(e.1) a copy of the decision appealed from,
(e.2) where the appellant alleges error by the trial judge in charging the jury, a copy of the charge,
(e.3) where the appeal relates to summary conviction proceedings and is from a decision of the appeal court, a copy of the decision of the trial judge and of the appeal court,
(f) a copy of any other relevant decision or ruling of the trial judge that is not included in the transcript,
(g) a copy of any Statement of Facts agreed to under Rule 63.07(5),
(h) if the appeal is other than one against sentence only, a list of all exhibits, and
(i) if the appeal is against sentence, a copy of any pre-sentence reports and a copy of the criminal record, if any, of the accused.
(2)Where the appellant is a convicted person not represented by counsel the Attorney General shall prepare the Appeal Book required under paragraph (1) and shall forward a copy of the Appeal Book and transcript, if any, to the appellant free of charge.
(3)The Registrar may refuse to accept an Appeal Book that does not comply with this subrule or that is not legible.
(4)The parties to an appeal may agree in writing or a Judge may, on motion, order that any material mentioned in paragraph (1) be omitted from the Appeal Book.
SI/86-57
63.11Appeal in Writing
(1)Where an appellant desires to present his argument in writing without appearing in person or by counsel he shall state his intention to do so in his Notice of Appeal and may
(a) include his points of argument in his Notice of Appeal, or
(b) file and serve an Appellant’s Submission within the time prescribed by Rule 63.13.
(2)Where a respondent desires to present his argument in writing instead of appearing in person or by counsel he shall, within the time prescribed by Rule 63.17, file and serve a Respondent’s Submission and a written notice that he does not intend to appear in person or by counsel.
63.12Appellant’s Submission
(1)An appellant shall prepare an Appellant’s Submission unless
(a) he is not represented by counsel and has stated in his Notice of Appeal that he desires to present oral argument only,
(b) he has included his points of argument in his Notice of Appeal, or
(c) it is ordered otherwise.
(2)An Appellant’s Submission shall state who is appealing, the court appealed from and the result in the court appealed from, and shall consist of 4 parts and 2 schedules as follows:
Part IA concise statement of all relevant facts with references to the evidence as may be necessary;
Part IIA concise statement setting out clearly and particularly in what respect the trial decision is alleged to be wrong;
Part IIIA concise statement of the argument, law and authorities relied upon;
Part IVA concise statement of the order sought from the Court of Appeal;
Schedule AA list of authorities in the order referred to in the Submission; and
Schedule BThe text of all relevant provisions of Acts and Regulations (or copies of the complete Act or Regulation may be filed and served with the Submission).
(3)The appellant shall number the paragraphs in the Appellant’s Submission.
(4)Unless otherwise ordered by the Chief Justice, an Appellant’s Submission, exclusive of Schedules A and B, shall not exceed 35 pages.
SI/86-57
63.13Perfecting Appeals
(1)Subject to paragraph (2), within 30 days after being notified that the evidence has been transcribed, or if no evidence is to be transcribed, within 30 days of the issue of the Notice of Appeal, an appellant shall serve on each party or send by prepaid mail or prepaid courier to a solicitor of record for each party
(a) a copy of the Appeal Book, and
(b) a copy of the Appellant’s Submission, if one is required,
and file with the Registrar
(c) if the Notice of Appeal was served under Rule 63.05(6), the original Notice of Appeal with proof of service,
(d) 5 copies of the Appeal Book,
(e) 5 copies of the Appellant’s Submission, if one is required, and
(f) a certificate that the document referred to in clause (a) and, where applicable, the document referred to in clause (b), have been served on each party or have been sent by prepaid mail or prepaid courier to the solicitor of record for each party.
(2)Where the appellant is a convicted person not represented by counsel, within the time prescribed by paragraph (1)
(a) the Attorney General shall file with the Registrar 5 copies of the Appeal Book,
(b) the appellant shall file with the Registrar 6 copies of the Appellant’s Submission, if one is required, and
(c) the Registrar shall forward to the respondent a copy of the Appellant’s Submission, if any.
(3)When paragraph (1) or (2) is complied with, the appeal is perfected and the Registrar shall forthwith notify the parties to the appeal of the date when it was perfected and the month in which it is eligible to be heard.
(4)A perfected cross-appeal may, with leave of a Judge, be placed on a List of Cases to be heard notwithstanding that the appeal itself has not been perfected.
SI/94-41
63.14List of Cases
(1)The Registrar shall prepare a List of Cases for each regular sitting of the Court of Appeal showing the date of the hearing of each case, in accordance with the instructions of the Chief Justice, and shall forward a copy to all parties to appeals scheduled for that sitting.
(2)Unless ordered otherwise, a perfected appeal
(a) shall not be placed on the List of Cases to be heard in the month when the appeal is perfected or in the next month, and
(b) subject to the directions of the Chief Justice, shall be placed on the List of Cases to be heard in the earliest month thereafter in which the Court of Appeal holds a regular sitting.
63.15Early Hearing of Appeals
On motion by any party to an appeal, with or without notice, the Court of Appeal or the Chief Justice may, in special circumstances, order an early hearing of the appeal and may give any necessary directions.
63.16Respondent’s Submission
(1)Subject to paragraph (5), each respondent shall prepare a Respondent’s Submission.
(2)A Respondent’s Submission shall consist of 4 parts and 2 schedules as follows:
Part IA statement of the facts in Part I of the Appellant’s Submission which the respondent accepts as correct, and those with which he disagrees, and a concise statement of any additional facts relied upon with references to the evidence as may be necessary;
Part IIThe position of the respondent with respect to each issue raised by the appellant followed by a concise statement of argument, law and authorities relied upon;
Part IIIAny additional issues raised by the respondent, each issue being followed by a concise statement of argument, law and authorities relied upon;
Part IVA concise statement of the order sought from the court;
Schedule AList of authorities in the order referred to in the submission; and
Schedule BThe text of all relevant provisions of Acts and Regulations (or copies of the complete Act or Regulation may be filed and served with the Submission).
(3)Where a respondent has given notice of crossappeal
(a) his submission respecting the cross-appeal shall be included in the Respondent’s Submission, and
(b) the appellant may deliver a Further Submission respecting the cross-appeal within 5 days from the receipt of the Respondent’s Submission.
(4)A respondent shall number the paragraphs in the Respondent’s Submission.
(4.1)Unless otherwise ordered by the Chief Justice, a Respondent’s Submission, exclusive of Schedules A and B, shall not exceed 35 pages.
(5)A respondent who is not represented by counsel need not comply with this subrule or with Rule 63.17.
SI/86-57; SI/94-41
63.17Filing and Service of Respondent’s Submission
A respondent shall, not later than the 20th day of the month preceding the month in which the appeal is eligible to be heard
(a) file 5 copies of the Respondent’s Submission with the Registrar, and
(b) serve a copy of the Respondent’s Submission on the appellant.
SI/86-57; SI/86-200
63.18Format of Appeal Book and Submissions
SI/99-103
(1)The Appeal Book and each Submission shall be produced legibly on one side of good quality white letter- size paper with margins of approximately 4 centimetres and bound with the printed pages to the left and numbered. The characters used shall be at least 12 point or 10 pitch size. The lines shall be at least one and onehalf lines apart, except for quotations from authorities which shall be indented and single-spaced.
(2)The front cover of the Appeal Book and of each Submission shall
(a) be entitled in the Court of Appeal and in the proceeding,
(b) indicate in block letters, the status of the parties in the court, with the appellant appearing first in all cases,
(c) state whether it is an Appeal Book, an Appellant’s Submission, a Respondent’s Submission or a Further Submission, and
(d) with respect to counsel for the parties, list their names, addresses for service, business telephone numbers and, if any, telephone numbers to which documents may be transmitted to produce facsimiles of the documents.
(3)The covers of an Appeal Book shall be grey, those of the Appellant’s Submission buff, those of the Respondent’s Submission dark green, and those of a Further Submission red.
(4)Unless ordered otherwise by a Judge, the Registrar may refuse to receive a document which does not comply with this rule.
SI/99-103
63.19Merits Argued on Application for Leave
Where the merits of an appeal are fully argued on the hearing of an application to the Court of Appeal for leave to appeal and leave to appeal is granted, the Court of Appeal may decide the appeal without further argument.
63.20Directions on Appeal
(1)A Judge may, on motion by a party to an appeal
(a) give directions respecting the form and contents of the Appeal Book,
(b) give directions respecting the preparation or reproduction of evidence, and
(c) vary the requirements of this rule to avoid undue expense or delay or for any other reason.
(2)The Court of Appeal or a Judge may direct a trial court to send to the Registrar any transcript, exhibit or other document for use on the appeal.
63.21Abandonment of Appeal
(1)An appellant who wishes to abandon an appeal may, before the hearing of the appeal
(a) serve on the respondent a Notice of Abandonment (Form 63E), and
(b) file with the Registrar the notice with proof of service.
(2)A Notice of Abandonment may be signed by the appellant or his counsel, but if it is signed by the appellant his signature shall be verified by affidavit or witnessed by a solicitor or by an officer of the penal institution in which the appellant is confined.
(3)An abandoned appeal shall be deemed to be dismissed without any formal order being necessary, but the respondent may apply to the Registrar for a formal order dismissing the appeal.
(4)Notwithstanding paragraph (3), a Judge may at any time, on notice of motion, grant leave to an appellant to withdraw a Notice of Abandonment if it is in the interest of justice to do so.
(5)This subrule applies to a cross-appeal.
63.22Failure to Comply with Rule
(1)Where a party to an appeal or his counsel is at fault in failing to comply with this rule, the Court of Appeal on motion of any other party to the appeal or on the application of the Registrar, may
(a) if the party failing to comply is the appellant
(i) dismiss the appeal, or
(ii) direct the appellant to perfect the appeal within a specified time,
(b) fix a date for hearing of the appeal, or
(c) make such other order as may be just.
(2)If an appeal is not perfected within 4 months of the date of the trial decision, the Registrar may give to the parties a Notice of Motion returnable before the Court of Appeal or a Judge for an order dismissing the appeal for non-compliance with the rules.
63.23Failure to Appear at Hearing of Appeal
(1)If an appellant who has not stated in his Notice of Appeal his intention not to appear personally or by counsel fails to appear at the hearing of the appeal, the Court of Appeal may adjourn the hearing, dismiss the appeal or may hear it in the appellant’s absence.
(2)Where a respondent fails to appear at the hearing of the appeal, the court may adjourn the hearing or hear the appeal in the respondent’s absence.
63.24Decision of Court
(1)The Registrar shall send copies of written orders or decisions of the Court of Appeal, without charge, to
(a) the parties or their counsel,
(b) the trial judge, and
(c) other persons as authorized by the Chief Justice.
(2)Where an order or decision of the Court of Appeal is given orally and is not reduced to writing, the Registrar shall notify, in writing
(a) the parties or their counsel, and
(b) the trial judge,
of the result of the appeal.
(3)When an order or decision of the Court of Appeal has been given, the Registrar, on request of any party to the appeal, shall settle, sign and enter a formal judgment bearing the date on which the order or decision was given and shall send a copy of the judgment to each party.
(4)Where an appeal has been dismissed by the Court of Appeal and a Judge has expressed an opinion dissenting from the decision of the Court of Appeal, the Registrar shall, in settling the formal judgment, comply with section 677 of the Criminal Code.
SI/94-41
63.25Release from Custody Pending Appeal
(1)Where an appellant seeks to appeal against sentence only and also seeks his release from custody pending the hearing of the appeal, a Judge shall first hear and determine the application for leave to appeal the sentence.
(2)Upon an application to a Judge for release from custody pending appeal pursuant to section 679 of the Criminal Code the appellant shall file an affidavit setting forth
(a) the offence of which he was convicted,
(b) any grounds of appeal not specified in his notice of appeal,
(c) his age and marital status,
(d) his places of residence in the 3 years preceding his conviction, and where he proposes to reside if released,
(e) his employment prior to conviction, and whether he expects to be employed if released, and where,
(f) his criminal record, if any,
(g) where the appeal is as to sentence only, what unnecessary hardship would be caused if he were detained in custody, and
(h) the particulars of any undertaking or recognizance proposed by him.
(3)Where the prosecutor contends that the detention of the appellant is necessary in the public interest, he shall file an affidavit setting out the facts upon which he relies.
(4)The appellant and the prosecutor may crossexamine upon affidavits filed by each other.
(5)A Judge may dispense with the filing of the affidavits referred to in paragraphs (2) and (3) and act upon an agreed Statement of Facts.
SI/94-41
63.26Extension or Abridgement of Time
(1)Subject to paragraph (2), an application to a Judge for an order to extend or abridge a time prescribed by this rule shall be made by Notice of Motion.
(2)A convicted person not represented by counsel may apply for an extension of time in his Notice of Appeal (Form 63C).
(3)Where an application for an extension of time is made under paragraph (2), a Judge may, on such notice to the Attorney General as the Judge directs, determine the application and either grant or refuse the extension.
(4)The Registrar shall notify the appellant and the Attorney General in writing of a decision under paragraph (3).
63.27Penal Institutions
(1)The Registrar shall supply the director or person in charge of each penal institution in New Brunswick, with sufficient copies of this rule and Form 63C for the use of prisoners.
(2)The director or person in charge of a penal institution shall, on request, supply to any prisoner a copy of this rule and copies of Form 63C.
(3)The director or person in charge of a penal institution shall forthwith cause to be delivered to a prisoner any document addressed to the prisoner by the Attorney General or the Registrar.
63.28Matters Not Provided For
Any matter of procedure or practice not provided for by the Criminal Code or this rule shall be governed by the Rules of Court in force from time to time regulating appeals.
Rule 63: SI/82-13
 
 
 
“Pursuant to section 438 of the Criminal Code, the foregoing rule was made by the Court of Appeal of New Brunswick, with the concurrence of a majority of the judges thereof, at a meeting held on July 28, 1981 to become effective on the coming into force of the new Rules of Court.”