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O. Reg. 722/94: RULES OF THE ONTARIO COURT (PROVINCIAL DIVISION) IN APPEALS UNDER SECTION 135 OF THE PROVINCIAL OFFENCES ACT

under Courts of Justice Act, R.S.O. 1990, c. C.43

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current December 12, 1994 (e-Laws currency date)

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Courts of Justice Act

ONTARIO REGULATION 722/94

RULES OF THE ONTARIO COURT (PROVINCIAL DIVISION) IN APPEALS UNDER SECTION 135 OF THE PROVINCIAL OFFENCES ACT

Consolidation Period: From December 12, 1994 to the e-Laws currency date.

No amendments.

This is the English version of a bilingual regulation.

CONTENTS

Rule

 

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

16.

Definitions and Interpretation

Calculation of Time

Notice by Mail

Substituted Service

Appeal Where Fine Imposed

Filing of Notice of Appeal

Notice to Crown Attorney

Extension or Abridgment of Time

Transcripts

Recognizances

Motions under Act or Rules

Directions

Dismissal of Appeal

Abandonment of Appeals

Notice of Decision of Court

Transition

Forms

 

DEFINITIONS AND INTERPRETATION

Definitions

1. (1) In these rules,

“Act” means the Provincial Offences Act; (“Loi”)

“appeal court” means the Ontario Court (Provincial Division) sitting as the appeal court under section 135 of the Act; (“tribunal d’appel”)

“clerk” means the clerk of the Ontario Court (Provincial Division); (“greffier”)

“file” means file with the clerk; (“déposer”)

“judge” means a judge of the Ontario Court (Provincial Division) sitting as the appeal court under section 135 of the Act. (“juge”) O. Reg. 722/94, r. 1 (1).

Application of rules

(2) These rules apply in respect of appeals to the Ontario Court (Provincial Division) under section 135 of the Act. O. Reg. 722/94, r. 1 (2).

General principle

(3) These rules shall be construed liberally so as to obtain as expeditious a conclusion of every proceeding as is consistent with a just determination of the proceeding. O. Reg. 722/94, r. 1 (3).

Matters not provided for

(4) Where matters are not provided for in these rules, the practice shall be determined by analogy to them. O. Reg. 722/94, r. 1 (4).

CALCULATION OF TIME

General

2. (1) In the calculation of time under these rules or an order of the court, except where a contrary intention appears,

(a) where there is a reference to a number of days between two events, they shall be counted by excluding the day on which the first event happens and including the day on which the second event happens, even if they are described as clear days or the words “at least” are used;

(b) where a period of less than seven days is prescribed, holidays shall not be counted;

(c) where the time for doing an act under these rules expires on a holiday, the act may be done on the next day that is not a holiday; and

(d) service of a document made after 4 p.m. or at any time on a holiday shall be deemed to have been made on the next day that is not a holiday. O. Reg. 722/94, r. 2 (1).

Local time

(2) Where a time of day is mentioned in these rules or in any documents in an appeal, the time referred to shall be taken as the time observed locally. O. Reg. 722/94, r. 2 (2).

“Holiday”

(3) For the purposes of subsection (1),

“holiday” means,

(a) any Saturday or Sunday,

(b) New Year’s Day,

(c) Good Friday,

(d) Easter Monday,

(e) Victoria Day,

(f) Canada Day,

(g) Civic Holiday,

(h) Labour Day,

(i) Thanksgiving Day,

(j) Remembrance Day,

(k) Christmas Day,

(l) Boxing Day, and

(m) any special holiday proclaimed by the Governor General or the Lieutenant Governor. O. Reg. 722/94, r. 2 (3).

Same

(4) Where,

(a) New Year’s Day, Canada Day or Remembrance Day falls on a Saturday or Sunday, the following Monday is a holiday;

(b) Christmas Day falls on a Saturday or Sunday, the following Monday and Tuesday are holidays;

(c) Christmas Day falls on a Friday, the following Monday is a holiday. O. Reg. 722/94, r. 2 (4).

NOTICE BY MAIL

3. A notice or document given or delivered by mail shall, unless the contrary is shown, be deemed to be given or delivered on the seventh day following the day on which it was mailed. O. Reg. 722/94, r. 3.

SUBSTITUTED SERVICE

4. Where, on motion without notice, it appears to a judge that reasonable efforts have been made without success to give or deliver a notice or document in the manner required by these rules or the Act, or that reasonable efforts would not be successful, the judge may make an order for substituted service of the notice or document in such manner as the judge directs or, where necessary in the interests of justice, may dispense with the giving or delivery of the notice or document upon such terms as the judge considers proper in the circumstances. O. Reg. 722/94, r. 4.

APPEAL WHERE FINE IMPOSED

5. A defendant who appeals from a decision imposing a fine shall file with the notice of appeal a receipt for payment of the fine issued by the clerk of the court that imposed the fine or state in the notice of appeal that the fine has been paid to a municipality responsible for collecting its own parking fines, unless the clerk is satisfied that an order has been made under subsection 111(2) of the Act and a recognizance has been entered into by the defendant in accordance with the order. O. Reg. 722/94, r. 5.

FILING OF NOTICE OF APPEAL

Notice of appeal

6. (1) A notice of appeal shall be in Form 1. O. Reg. 722/94, r. 6 (1).

Time and place for hearing

(2) Upon the filing of the notice of appeal, the clerk shall set a time and place for the hearing of the appeal in accordance with section 135 of the Act. O. Reg. 722/94, r. 6 (2).

Notice to respondent

(3) The clerk shall give the respondent a copy of the filed notice of appeal and a notice of the time and place of the hearing in Form 2. O. Reg. 722/94, r. 6 (3).

Timely notice

(4) Notice of the time and place of the hearing shall be given at least 15 days before the day set for the hearing. O. Reg. 722/94, r. 6 (4).

Certificate

(5) A certificate of giving a notice under subrule (3) endorsed on the notice by the clerk shall be received in evidence and, in the absence of evidence to the contrary, is proof that the notice was given. O. Reg. 722/94, r. 6 (5).

Interpretation

(6) For the purposes of this rule, where the defendant appeals, the prosecutor is the respondent, and vice-versa. O. Reg. 722/94, r. 6 (6).

NOTICE TO CROWN ATTORNEY

Copies to Crown Attorney

7. (1) The clerk shall give the Crown Attorney a copy of each notice or document filed with or issued by the clerk in respect of an appeal under these rules. O. Reg. 722/94, r. 7 (1).

Intervention of Crown Attorney

(2) Where a prosecutor is not acting on behalf of the Crown, the Crown Attorney may intervene to act on behalf of the prosecutor or to attend as a party on the appeal. O. Reg. 722/94, r. 7 (2).

EXTENSION OR ABRIDGMENT OF TIME

Judge’s power

8. (1) A judge may extend or abridge the time for bringing an appeal and for doing any other act in connection with an appeal for which a time is prescribed before or after the expiration of the time prescribed. O. Reg. 722/94, r. 8 (1).

Notice

(2) A notice of motion to extend or abridge time shall be given to the opposite party, unless otherwise directed by a judge. O. Reg. 722/94, r. 8 (2).

TRANSCRIPTS

Transcript not required

9. (1) Unless a judge orders otherwise, a party to an appeal need not provide a transcript of all or any part of the evidence at trial. O. Reg. 722/94, r. 9 (1).

Transcripts required

(2) Where the court orders that a transcript of all or any part of the evidence at trial be provided under clause 136 (3) (a) of the Act or a party to an appeal files such a transcript, an appellant shall file and deliver to the respondent,

(a) in an appeal against conviction or acquittal, one copy of the transcript of evidence at trial, including reasons for judgment; and

(b) in an appeal against conviction and sentence or sentence only, one copy of the transcript of evidence at trial and submissions on sentencing, including reasons for judgment and sentence, if any. O. Reg. 722/94, r. 9 (2).

Transcript to Crown Attorney

(3) Where the Crown Attorney has given notice of intervention after receiving notice of appeal, the appellant shall deliver a copy of the transcript of evidence at trial, including reasons for judgment and sentence, if any, to the Crown Attorney. O. Reg. 722/94, r. 9 (3).

RECOGNIZANCES

10. (1) An order for recognizance and recognizance under section 110 of the Act shall be in Form 3. O. Reg. 722/94, r. 10 (1).

(2) An order for recognizance and recognizance under section 111 of the Act shall be in Form 4. O. Reg. 722/94, r. 10 (2).

MOTIONS UNDER ACT OR RULES

Notice of motion

11. (1) A motion provided for by the Act or these rules shall be commenced by a notice of motion. O. Reg. 722/94, r. 11 (1).

Time for hearing

(2) There shall be at least three days between service of the notice of motion and the day for hearing the motion. O. Reg. 722/94, r. 11 (2).

Time for filing notice

(3) The moving party shall file notice of motion at least two days before the day for hearing the motion. O. Reg. 722/94, r. 11 (3).

Evidence

(4) Evidence on a motion may be given,

(a) by affidavit;

(b) with the permission of the court, orally; or

(c) in the form of a transcript of the examination of a witness. O. Reg. 722/94, r. 11 (4).

Power of judge

(5) Upon the hearing of a motion, the judge may receive and base his or her decision on information that he or she considers credible or trustworthy in the circumstances, whether or not other evidence is given. O. Reg. 722/94, r. 11 (5).

Hearing where notice not served

(6) A motion may be heard without service of a notice of motion,

(a) on consent;

(b) where the motion is made under section 111 or 112 of the Act; or

(c) where, having regard to the subject-matter or the circumstances of the motion, it would not be unjust to hear the motion without service of a notice of motion. O. Reg. 722/94, r. 11 (6).

DIRECTIONS

12. A party to an appeal may make a motion to the court at any time for directions with respect to the conduct of the appeal. O. Reg. 722/94, r. 12.

DISMISSAL OF APPEAL

13. The court may dismiss an appeal where the appellant,

(a) does not attend in person or by counsel on the day set by the clerk for the hearing of the appeal;

(b) has filed a notice of abandonment;

(c) has not filed a transcript of evidence at trial, including reasons for judgment or sentence, if any, within 30 days after receiving notice of completion of the transcript from the clerk of the Ontario Court (Provincial Division); or

(d) has failed to comply with an order of the court in respect of the appeal. O. Reg. 722/94, r. 13.

ABANDONMENT OF APPEALS

Notice of abandonment

14. (1) An appellant who wishes to abandon the appeal may file a notice of abandonment in Form 5. O. Reg. 722/94, r. 14 (1).

Signing of notice

(2) The appellant or counsel for the appellant shall sign the notice of abandonment. O. Reg. 722/94, r. 14 (2).

Signing by witness

(3) Where the appellant signs the notice of abandonment, the notice must also be signed by another person who witnessed the signing by the appellant. O. Reg. 722/94, r. 14 (3).

Affidavit of execution

(4) Where the witness is not counsel for the appellant, the appellant shall file an affidavit of execution by the witness with the notice of abandonment. O. Reg. 722/94, r. 14 (4).

Notice to other parties

(5) The clerk shall give a copy of the filed notice of abandonment to each of the other parties to the appeal. O. Reg. 722/94, r. 14 (5).

NOTICE OF DECISION OF COURT

Notice of decision on appeal

15. (1) Immediately after the disposition of an appeal, the clerk shall give notice of the court’s decision, including any written reasons and endorsements,

(a) to each party to the appeal who was not present in person or by counsel when the decision was made;

(b) to the clerk of the Ontario Court (Provincial Division); and

(c) to the Crown Attorney, where a prosecutor is not acting on behalf of the Crown. O. Reg. 722/94, r. 15 (1).

Deemed receipt of notice of trial

(2) Where the appeal court directs a new trial and sets a date for the trial with the consent of the parties, the defendant is deemed to have received notice of trial. O. Reg. 722/94, r. 15 (2).

TRANSITION

Definition, “preceding rules”

16. (1) In this rule,

“preceding rules” means the Rules of the Ontario Court (Provincial Division) in Appeals under Section 135 of the Provincial Offences Act (Regulation 198 of the Revised Regulations of Ontario, 1990) as they read on the day before these rules come into force. O. Reg. 722/94, r. 16 (1).

Application of rules

(2) These rules apply to all appeals, whether commenced before or after these rules come into force, except in respect of steps already taken under the preceding rules. O. Reg. 722/94, r. 16 (2).

Power of judge

(3) Despite the repeal of the preceding rules and subrule (2), a judge may make an order that an appeal, or a step in the appeal, be conducted under these rules or the preceding rules or make any order that is considered just in order to secure the fair and expeditious conduct of the appeal. O. Reg. 722/94, r. 16 (3).

17. Omitted (revokes other Regulations and provides for coming into force of provisions of this Regulation). O. Reg. 722/94, r. 17.

Form 1

NOTICE OF APPEAL UNDER SECTION 135 OF THE PROVINCIAL OFFENCES ACT

Courts of Justice Act

O. Reg. 722/94, Form 1.

Form 2

NOTICE OF TIME AND PLACE OF HEARING OF APPEAL
UNDER SECTION 135 OF THE PROVINCIAL OFFENCES ACT

Courts of Justice Act

O. Reg. 722/94, Form 2.

Form 3

ORDER FOR RECOGNIZANCE AND RECOGNIZANCE UNDER SECTION 110 OF THE PROVINCIAL OFFENCES ACT

Courts of Justice Act

O. Reg. 722/94, Form 3.

Form 4

ORDER FOR RECOGNIZANCE AND RECOGNIZANCE

Courts of Justice Act

O. Reg. 722/94, Form 4.

Form 5

NOTICE OF ABANDONMENT OF APPEAL

Courts of Justice Act

O. Reg. 722/94, Form 5.

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