Effective: 1 March 2017
Amended: 14 June 2021; 21 October 2021
This Practice Direction is currently under revision to reflect changes to procedures and nomenclature. For example, the Senior Legal Officer is now referred to as the Executive Legal Officer. The current Practice Direction remains in force and continues to apply, except to the extent that: (i) it is inconsistent with the new <Criminal Appeal Rules>, which come into force on November 1, 2021; or (ii) it is varied by the Consolidated Practice Direction Regarding Proceedings in the Court of Appeal During the COVID-19 Pandemic. A revised Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario will be released at a later date.
TABLE OF CONTENTS
This Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario revokes and replaces all of the Court of Appeal’s previously issued Practice Directions, Administrative Guidelines, Administrative Advisories, and Notices to the Profession concerning criminal appeals.
This Practice Direction applies to solicitor appeals, motions and applications, including limited retainers, s. 684 appointments, and Crown appeals. It was made pursuant to the court’s rule-making powers in sections 482 and 482.1 of the Criminal Code. It is effective as of 1 March 2017.
This Practice Direction does not apply to duty counsel, amicus curiae, or inmate appeals.
Note that for mental health appeals under Part XX.1 of the Criminal Code, the practices in this Practice Direction apply except as specified in section 18 below.
When bringing a criminal appeal or motion in the Court of Appeal, parties must consult the Criminal Appeal Rules, SI/ 93-169, 1993 Canada Gazette, Part II.
Practice Directions supplement the Criminal Appeal Rules and provide guidance and direction about matters not covered by the Rules.
Unless otherwise defined in this Practice Direction, the definitions of terms in the Criminal Code and/ or the Criminal Appeal Rules apply here.
The title of a proceeding should set out the parties in the same order as they appear in the title of proceeding in the court appealed from. The appellant, respondent, and any interveners must be clearly identified. The names of the accused must appear in the order in which they appeared on the Indictment. Interveners who are not parties should not appear in the title of proceeding.
(i) a table of contents describing each document by its nature and date, and in the case of an exhibit, by exhibit number or letter;
(ii) a copy of the notice of motion;
(iii) a copy of the notice of appeal (or proposed notice of appeal where the moving party is seeking an extension of time);
(iv) any previous court order(s) made in the proceeding that is (are) relevant to the issues on the motion, together with the court’s reasons for the prior order(s);
(v) a copy of all affidavits and other material served by any party for use on the motion;
(vi) a list of any relevant transcripts of evidence, where available, in chronological order, and any transcripts necessary for the judge to decide the motion;
(vii) a current copy of the Information or Indictment, including endorsements, where available;
(viii) a copy of the pre-trial and/ or pre-sentence judicial interim release order, where relevant; and
(ix) a copy of any other original papers or material in the court file that is necessary for the hearing of the motion.
(i) compensation or restitution under s. 689 of the Criminal Code;
(ii) forfeiture under s. 462.37(1);
(iii) a driving prohibition pursuant to s. 261;
(iv) orders relating to offence-related property made under s. 490.7; and
(v) forfeiture orders relating to proceeds of crime referred to in s. 462.45.
When a party seeks to bring a motion without serving the notice of motion on the opposing party(ies), the moving party must indicate in the notice of motion the reasons for seeking to bring the motion without notice. A judge of the court will review the notice of motion and may grant the request to move without notice if the judge is satisfied that the nature of the motion or the circumstances render service of the notice of motion impracticable or unnecessary.
A three-judge panel of the Court of Appeal holds oral hearings on the following types of motions (“panel motions”), which include motions requesting the exercise of the court’s powers under s. 683 of the Criminal Code:
(i) Motions for sealing orders or to continue a sealing order from the lower court; to have an appeal heard “in camera“, motions ordering a person to be cross-examined; orders in relation to exhibits which may or may have not been filed in the trial court; motions to suspend a sentencing order pursuant to s. 683(5);
(ii) Motions for the consent disposition of appeals;
(iii) Motions to quash an appeal on the grounds that there is no statutory right of appeal: see s. 674 of the Criminal Code; and
(iv) Motions for review of a decision of a single judge, if directed pursuant to s. 680 of the Criminal Code.
(i) the form in which the fresh evidence will be tendered;
(ii) the contents of the record on the motion;
(iii) the time within which the various steps necessary to complete the record will be completed;
(iv) the dates, manner and order in which any cross-examinations shall take place, including whether the cross-examinations will be videotaped and presided over by a member of the court or other judicial officer;
(v) the length of the factums that may be filed in connection with the fresh evidence application; and
(vi) the manner in which the completed fresh evidence record is to be kept in advance of hearing.
(i) the nature of the proposed fresh evidence;
(ii) the ground or grounds of appeal to which the proposed fresh evidence relates;
(iii) the person or persons from whom the evidence will be obtained;
(iv) the basis upon which the evidence is said to be admissible;
(v) whether the opposing party consents to the receipt of the fresh evidence on appeal (if the opposing party’s position is known).
(i) the timely production of the transcript of trial proceedings;
(ii) the timely production of the appeal books;
(iii) schedules for service and filing of transcripts, appeal books, factums and compendiums;
(iv) schedules for the completion of any fresh evidence materials to be tendered for admission on appeal;
(v) the timeliness of the hearing of the appeal on a record that is sufficient to permit a just determination of the issues in dispute; and
(vi) the manner in which any evidence is called in the Court of Appeal.
(i) the transcript is not ordered during the period prescribed by the Rules, and the time is not extended by a judge of the court; or
(ii) a judge extends the time for ordering transcripts, but the transcript is not ordered within that extended time period.
(i) Include the cases and extracts from secondary authorities that are referred to in oral or written argument, subject to the exception noted next;
(ii) The Court of Appeal has adopted a List of Frequently Cited Criminal Authorities. Authorities on this list do not need to be included in the books of authorities. Instead, when a party’s factum refers to an authority on this list, the book of authorities should only include the headnote and particular passage(s) from the authority being relied on. A complete version of the authorities on this list is available on the court’s website for the parties, and internally for the judges’ use;
(iii) Separate the authorities in the book of authorities with a tab (either numerical or alphabetical) and include a table of contents listing where to find each authority. The authorities may be printed on both sides of the page;
(iv) Authorities cited by one party shall not be duplicated by another: Rule 22(5); and
(v) Joint book of authorities should be bound front and back in yellow covers and marked “Joint Book of Authorities”. A book of authorities filed only by the appellant should be bound front and back and marked “Appellant’s Book of Authorities”. A book of authorities filed only by the respondent should be bound front and back and marked “Respondent’s Book of Authorities”. As required by Rule 22(6), a book of authorities filed by only one party should be bound in coloured stock the same colour as the party’s factum.
(i) the decision as posted on the relevant court’s website, preferably using the PDF format;
(ii) the decision as posted on CanLII (www.canlii.org), preferably using the PDF format;
(iii) the decision as it appears in an official or semi-official reporter (e.g., Supreme Court of Canada Reports, Ontario Reports, and other provincial reporter series such as the B.C.L.R.’s, etc.);
(iv) the decision as it appears in an unofficial reporter (e.g., Canadian Criminal Cases, Criminal Reports, etc.);
(v) the decision as posted on subscription-based databases (e.g., WestlawNext Canada, LexisNexis Quicklaw, etc.).
(i) appeals involving young persons;
(ii) appeals in extradition matters;
(iii) appeals involving orders made under Part XX.1 of the Criminal Code (Mental Disorder);
(iv) appeals where the hearing of the appeal is delaying the progress of an ongoing court proceeding; and
(v) appeals against sentence only.
The parties may consult the Court of Appeal’s website at https://www.ontariocourts.ca/coa/current-hearing-lists/ to see the weekly hearings lists and the composition of the panel for their appeal. The weekly hearing lists are posted on Friday at noon on the week prior to the next week’s hearings.
Members of the Court of Appeal should be addressed as “Chief Justice”, “Associate Chief Justice”, “Justice” or “Justice (Surname)” as appropriate, and not as Madam Justice, My Lady, My Lord, Your Ladyship, Your Lordship or Your Honour.
Lawyers do not need to wear gowns when they appear on motions before a single judge in chambers.
Counsel who are pregnant when appearing before a panel in the Court of Appeal for Ontario are free to modify their traditional court attire in order to accommodate their pregnancy as they see fit, including dispensing with a waistcoat and tabs.
The court provides advance notice of release of its reserved decisions at https://www.ontariocourts.ca/coa/decisions_main/notice/.
(i) an application record containing, in consecutively numbered pages arranged in the following order:
(a) a table of contents describing each document, including each exhibit, by its nature and date, and in the case of an exhibit, by exhibit number or letter;
(b) a copy of the notice of application for leave to appeal and for a stay of the driving prohibition pending appeal;
(c) a copy of the proposed notice of appeal (in the event leave is granted);
(d) a copy of the information;
(e) a copy of the reasons for judgment of the court from which leave to appeal is sought with a further typed or printed copy if the reasons are handwritten;
(f) a copy of the Notice of Appeal from the Superior Court of Justice proceedings;
(g) copies of the factums from the Superior Court of Justice proceedings;
(h) any affidavit of the applicant that may be relied on, which shall address matters relevant to the application for leave to appeal and/or the application for a stay of the driving prohibition pending appeal;
(i) a copy of all material relevant to the applications for leave to appeal and for a stay of driving prohibition pending appeal that was before the court from which leave to appeal is sought;
(j) any additional material relied on in support of the application to stay the driving prohibition pending appeal; and
(k) relevant excerpts of transcripts of evidence.
(ii) a factum consisting of a concise statement of the facts and law relied on by the applicant.
(i) “appeal counsel” means a defence lawyer who is retained to represent an appellant on any appeal against conviction and/or sentence to the Court of Appeal for Ontario;
(ii) “appellant” means a person who has been convicted of a criminal offence and has launched an appeal against that conviction and/or sentence to the Court of Appeal for Ontario;
(iii) “appeal management judge” means the judge of the Court of Appeal who is responsible for managing the perfection of the appeal;
(iv) “Court” means the Court of Appeal for Ontario or a panel thereof;
(v) “file” means all of the pleadings, disclosure, documents, memoranda, records, instructions, transcripts, journals, correspondence of all kinds, whether written or electronic, that were kept or used by trial counsel in respect of criminal proceedings against an appellant;
(vi) “record” means all evidence and submissions filed with respect to the fresh evidence application;
(vii) “respondent” means counsel for the Crown (either from the Crown Law Office – Criminal or the Federal Department of Justice) assigned to respond to the appellant’s appeal; and
(viii) “trial counsel” means any defence lawyer who was retained to act on behalf of any appellant in criminal proceedings at trial.
(i) satisfy him or herself, by personal investigation or inquiries, that some factual foundation exists for this allegation apart from the instructions of the appellant;
(ii) provide trial counsel with informal notice of the general nature of the potential allegation of ineffective assistance;
(iii) provide trial counsel with a copy of this section of the Practice Direction, or a link to the court’s website where it can be found; and
(iv) provide trial counsel with a reasonable opportunity to respond to the allegations.
When provided with informal notice of the potential allegations, trial counsel shall acknowledge receipt of the notice in writing to appeal counsel as soon as reasonably possible.
(i) provide trial counsel with a copy of a supplementary notice of appeal in which the allegation of ineffective assistance of counsel is described with reasonable particularity, together with any subsequent documents that provide any further details of the claim;
(ii) serve a copy of the supplementary notice of appeal and any subsequent documents that provide further details of the claim on the respondent;
(iii) file a supplementary notice of appeal with the Court; and
(iv) serve and file with the supplementary notice of appeal a cover letter stating that the matter concerns an allegation of ineffective assistance of counsel, and providing the court with the address, telephone number, and e-mail address of the trial or appellate counsel alleged to have provided ineffective assistance.
(i) facilitate trial counsel’s access to the entire file within a reasonable time; and
(ii) permit trial counsel to make copies of those documents she or he wishes from the file at trial counsel’s own expense.
(i) assign counsel to respond to the appeal and to deal with any issues that may arise concerning the claim of ineffective assistance of trial counsel; and
(ii) advise the Criminal Appeal Coordinator of the name of counsel assigned to respond to the appeal. An e-mail to this effect is sufficient.
Where the appellant does not assert any claim of solicitor-client privilege with respect to any material in the file, the respondent may make copies of any or all of those materials at the respondent’s expense.
(i) an inventory identifying the materials alleged to be privileged, to the extent it is possible to do so without compromising the privilege; and
(ii) a brief written statement of appeal counsel’s position on the basis of the claim of the solicitor-client privilege and the extent or scope of any waiver of the privilege arising from the allegation of ineffective assistance at trial.
Where the respondent takes issue with the applicability of solicitor-client privilege as advanced by appeal counsel, the respondent may apply to the appeal management judge for directions about the determination of the issue, in accordance with para. 11, below.
(i) the specific nature of the allegation of ineffective assistance;
(ii) any issues arising from the assertion of solicitor-client privilege and the extent of any waiver of that privilege;
(iii) any issues arising out of access to the trial file by trial counsel or the respondent;
(iv) a timetable for the appellant’s perfection of the appeal, including the filing of material to comprise the record on the claim of ineffective assistance of counsel; and
(v) any other issues relating to the perfection, listing and argument of the appeal.
(i) the order and timetable for cross-examination on the materials filed by appeal counsel and the respondent;
(ii) the timetable for cross-examination of trial counsel on his or her affidavit, or if trial counsel has not filed an affidavit, for examination of trial counsel on his or her professional performance at trial; and
(iii) the resolution of any outstanding or potential issues of solicitor-client privilege before the examination or cross-examination of trial counsel takes place.
(i) filing the record compiled in connection with the claim of ineffective assistance of trial counsel;
(ii) filing any additional factums relating to this ground of appeal;
(iii) determining the time to be allotted for oral argument;
(iv) a timetable for the filing of material to be filed on behalf of the respondent;
(v) a timetable for any remaining cross-examinations;
(vi) setting a date for the hearing of the appeal; and
(vii) any other issue relating to the perfection, listing or hearing of the appeal, including whether any further appeal management conference calls are necessary.
Parties wishing to schedule an appeal should follow the same steps as set out in section 10 of this Practice Direction with any necessary modifications to accommodate the accused.
The office of the Registrar may be contacted at COA.Registrar@ontario.ca, or at (416) 327-5101.
The office of the Senior Legal Officer may be contacted at COA.SeniorLegalOfficer@ontario.ca, or at (416) 327-5101.
The office of the Criminal Appeal Coordinator may be contacted at COA.Criminal.Scheduling@ontario.ca, or at (416) 327-5101.
Chief Justice George R. Strathy
January 30, 2017