Practice Direction Regarding Accessing Court Documents and Exhibits from Lower Courts for Purposes of Preparing Appeal Books in Criminal Appeals

Effective: November 22, 2021

I. OVERVIEW

1. In consultation with relevant stakeholders, the Court of Appeal is in the process of reviewing and revising Rule 12 (and its associated Form 8) and Rule 54 of the Criminal Appeal Rules. These rules set out the procedure for how parties to an appeal gain access to court documents and exhibits from the court where the proceedings giving rise to the order under appeal were held (“the lower court”) for purposes of preparing appeal books in solicitor appeals, in-person appeals and inmate appeals.
2. While these rules are undergoing review and revision, this Practice Direction provides further clarification and guidance on how parties to an appeal gain access to court documents and exhibits from the lower court.
3. The Criminal Appeal Rules, including Rule 12 and Rule 54, continue to apply except to the extent that they are varied by this Practice Direction.
4. This Practice Direction is effective immediately.

II. MEANING OF “ORIGINAL PAPERS”

5. Rule 12 and Rule 54, as well as subrule 66(10), use the term “original papers”. To be clear this term means actual court documents, such as the indictment or the information, that were before the lower court.

III. COPIES OF COURT DOCUMENTS AND EXHIBITS TO BE SENT TO THE COURT OF APPEAL

6. Unless it is otherwise directed or ordered by the Court of Appeal or a judge of the Court of Appeal, all court documents and exhibits sent to the Court of Appeal pursuant to an appellant’s request must be copies of the originals rather than the originals.
7. Where the lower court experiences difficulty with copying any of the exhibits requested by the appellant, the lower court shall notify the appellant, and, if the appellant and the lower court cannot resolve the issue, the appellant shall bring a motion for directions to a judge of the Court of Appeal.

IV. PARTIES ENCOURAGED TO NARROW EXHIBIT REQUESTS WHERE POSSIBLE

8. Pursuant to paragraphs 12(3)(a) and 12(5)(a), appellants in solicitor appeals and in-person appeals must request, and the lower court must send, copies of all exhibits, whether in paper or electronic format, capable of reproduction that were before the lower court. However, where the parties agree that only certain exhibits are required for the appeal, the appellant should adapt the text of Form 8 to request only those exhibits. Appellants are encouraged to consult with the other parties to the appeal before sending the court document and exhibit requisition in Form 8 to the lower court, in case the exhibit request can be narrowed, on consent, in light of the issues in the appeal.

V. SCANNED VERSIONS OF PAPER COURT DOCUMENTS AND PAPER EXHIBITS WHERE POSSIBLE

9. With respect to court documents and/or exhibits that are in paper format, the Court of Appeal encourages the lower courts to scan, rather than copy, these materials and send the scanned versions to the Registrar of the Court of Appeal electronically.

VI. SEALED COURT DOCUMENTS AND SEALED EXHIBITS

10. Subrules 12(7) and 54(4), which specifically address how sealed court documents and sealed exhibits should be sent to the Court of Appeal, are suspended. Instead, this Practice Direction governs how parties to an appeal may seek access to sealed court documents and sealed exhibits that were before the lower court for purposes of preparing the appeal books.
11. The registrar or clerk of the lower court shall not send to the Registrar of the Court of Appeal any sealed court documents or sealed exhibits unless so ordered by the Court of Appeal or a judge of the Court of Appeal.
12. Where a party to a solicitor appeal or an in-person appeal requires access to sealed documents or sealed exhibits that were before the lower court, they shall bring a motion to a judge of the Court of Appeal on notice to all parties. Where possible, the Court of Appeal encourages parties to bring such motions in writing. If access is granted, the judge will specify how access will be provided, including who will make the copies of the sealed documents or sealed exhibits, where and how.
13. Where a party to an inmate appeal seeks access to sealed documents or sealed exhibits that were before the lower court, they shall send a letter to the Registrar of the Court of Appeal (copying the other parties where possible) advising of their request. The Registrar of the Court of Appeal will ensure all other parties receive a copy of the request and will also ensure that any responses to the request from the other parties are provided to the judge considering the request. Where possible, the Court of Appeal encourages these requests to be dealt with in writing. Where this is not possible, the Registrar of the Court of Appeal will arrange for the request to be heard by a judge of the Court of Appeal presiding during a sitting of inmate appeals. If access is granted, the judge will specify how access will be provided, including who will make the copies of the sealed documents or sealed exhibits, where and how.

Chief Justice George R. Strathy

Date November 22, 2021