C-25.1, r. 5 - Rules of practice of the Québec Superior Court in Penal Matters

À jour au 1^er septembre 2012

Ce document a valeur officielle.

chapter C-25.1, r. 5

Rules of practice of the Québec Superior Court in Penal Matters

Code of Penal Procedure

(chapter C-25.1, art. 368).

I. PRELIMINARY PROVISIONS

1. These rules shall apply to all the judicial districts of Québec.

O.C. 1112-2001, s. 1.

2. Unless otherwise stated,

(a)  “Code” means the Code of Penal Procedure (chapter C-25.1);

(b)  “application” means any written application contemplated by Articles 31 and 32 of the Code of Penal Procedure;

(c)  “clerk” means the clerk of the Superior Court, Criminal Division, for the district where the appeal is filed;

(d)  “clerk of the court of first instance” means the functionary having the legal custody of the proceedings which comprise the record of the court which rendered the decision appealed from.

O.C. 1112-2001, s. 2.

II. GENERAL PROVISIONS

(A) Hearing

3. Sessions of the court shall commence at 9:30 a.m. or at such other time as the court may set.

O.C. 1112-2001, s. 3.

4. All persons present shall rise when the judge enters the court room and remain standing until the judge is seated. At the adjournment, they shall rise again, and remain standing until the judge has retired.

O.C. 1112-2001, s. 4.

5. At the opening of the session, the court usher shall say aloud: “Silence. All rise please. The Superior Court is now in session, the Honourable _________________ presiding”.

Once the judge is seated, the court usher shall invite those present also to be seated.

O.C. 1112-2001, s. 5.

6. During session of the court, the following attire is obligatory:

(a)  for members of the bar: black gown, bands, white collar and dark clothing;

(b)  for articled students: black gown and dark clothing;

(c)  for the court clerk and usher: black gown and dark clothing.

The wearing of the gown is not required during the months of July and August.

O.C. 1112-2001, s. 6.

7. Every person appearing before the court shall be suitably attired.

Anyone addressing the court shall stand, unless the judge permits otherwise.

O.C. 1112-2001, s. 7.

8. Any conduct or demeanour which interferes with the dignity and good order of the court is forbidden.

In particular it is forbidden to read newspapers, to take photographs, practice cinematography, or to utilise radio or television equipment, or cellular telephones and pagettes during sessions of the court.

The media may nevertheless record proceedings before the court on audiotape, including any decision rendered, unless the judge orders otherwise. The broadcasting of any such recording is prohibited.

O.C. 1112-2001, s. 8.

(B)Applications and Motions

9. All written applications are presented by way of motion, served upon the opposing party with a notice of presentation of at least one clear juridical day except in cases where the law expressly provides for another time period.

O.C. 1112-2001, s. 9.

10. All applications or motions must set out precisely and concisely the factual and legal grounds upon which the petitioner intends to rely together with the conclusions sought.

O.C. 1112-2001, s. 10.

(C) Jurisprudence and Doctrine

11. A party wishing to plead in writing as contemplated by Article 284 of the Code must file a memorandum within 30 days of the deposit of the complete record at the office of the clerk of the Superior Court. The memorandum must summarize the facts of the case with cross references to the relevant pages of transcript and must set out the arguments invoked together with the supporting authorities.

O.C. 1112-2001, s. 11.

12. A party who refers to jurisprudence or doctrine or upon regulatory or statutory provisions other than those set out in the Canadian Charter of Rights and Freedoms (Part I of Schedule B to the Canada Act, chapter 11 in the 1982 volume of the Acts of the Parliament of the United Kingdom), the Charter of human rights and freedoms (chapter C-12) or the Highway Safety Code (chapter C-24.2) must file in the court record a copy of the relevant provisions of the applicable regulation or statute appropriately highlighted.

O.C. 1112-2001, s. 12.

(D) Inscription on the Roll

13. Only those applications and motions filed in the office of the clerk of the court in conformity with these rules shall be placed on the roll for hearing, unless specific provisions provide otherwise.

O.C. 1112-2001, s. 13.

(E) Hearing By Video Conferencing

14. All motions, applications or appeals may be presented by way of videolink in districts where the necessary equipment is available.

Any party wishing to proceed in this manner must present a written application to the Judge Administrator of the Criminal Division with a copy to the other parties involved. In cases of urgency, such applications may be made by telephone.

After examining the matter, the judge shall forward his decision to the parties or to their attorneys.

The parties may plead from any video facility available in the territory where they respectively reside or either party may, at its option, address the court in the court room where the receiving apparatus is located and where the court is sitting.

O.C. 1112-2001, s. 14.

(F) Judgment

15. The court may make any order which it deems necessary in the interest of justice and may include therein such conditions as it deems just.

O.C. 1112-2001, s. 15.

16. The clerk shall forward every written judgment or, as the case may be, the conclusions of any judgment rendered in open court and noted in the court record, to the parties or their counsel, to the judge who rendered the decision in first instance, and to the clerk of the court of first instance.

O.C. 1112-2001, s. 16.

III. PARTICULAR PROVISIONS

(A) Extraordinary remedies

17. The judge may issue any directions deemed appropriate with a view to accelerating the hearing and may also limit the proof provided that such a direction entails no prejudice for any party. In particular the judge may require the measures contemplated in rule 24.

O.C. 1112-2001, s. 17.

(B) Appeals pursuant to Articles 266 et sq. of the Code

18. The notice of appeal from any decision must be signed by the appellant or by his counsel and must contain the following information:

(a)  the offence charged;

(b)  the sentence imposed, where applicable;

(c)  the date of the decision and/or the sentence, as the case may be;

(d)  the place where the trial was held;

(e)  the name of the court of first instance and the number of the court record;

(f)  the grounds of appeal and the conclusions sought, stated precisely and concisely;

(g)  the address of the appellant and his counsel;

(h)  the names and addresses of the respondent and, where applicable, of all other parties, and of their respective counsel at first instance.

O.C. 1112-2001, s. 18.

19. Any appellant wishing to urge grounds of appeal other than those set out in the notice of appeal, must deposit with the clerk, no later than 15 days before the hearing of the appeal, a notice setting out precisely and concisely such additional grounds, together with proof of service upon the other party or his attorney.

O.C. 1112-2001, s. 19.

20. An appeal is commenced by the filing of a notice of appeal in the office of the clerk within the times contemplated in Article 271 of the Code or within such extended time as may have been authorized pursuant to the second paragraph of Article 271.

Upon receipt of the notice of appeal the clerk shall transmit copies of same to counsel who acted in first instance as well as to the judge who rendered the decision appealed from and to the clerk of the court of first instance.

O.C. 1112-2001, s. 20.

(C) Appearance

21. Any attorney who has signed a notice of appeal or who has filed an Appearance in virtue of the provisions of Article 274 of the Code is deemed to have appeared for the party whom he purportedly represents. An un-represented respondent must appear personally within the time contemplated in the Code.

O.C. 1112-2001, s. 21.

22. An attorney who wishes to cease representing a party must so advise his client, together with the other party or his attorney if he is represented.

Furthermore, any attorney who wishes to cease representing a party within the 10 days preceding the date fixed for the hearing of the appeal must obtain the authorization of a judge to do so, and to this end must serve upon his client, upon the opposing party or his attorney if he is represented, and upon the clerk an application setting out the reasons, with one clear day’s notice of presentation.

O.C. 1112-2001, s. 22.

(D) Applications for Security or Dismissal of the Appeal

23. The applications contemplated by Articles 278 and 279 of the Code must be presented within 10 days of the expiry of the time fixed to appear, unless a judge, for reasons deemed sufficient, authorizes the presentation of any such applications at a later date.

O.C. 1112-2001, s. 23.

(E) Compilation of the Record

24. Upon receipt of the notice of appeal or where granted, of the motion for extension of the time to appeal, the clerk shall:

(a)  call for the record of the court of the first instance;

(b)  place the case pro forma on the practice roll, within 30 days of the deposit of the notice of appeal or within such other time as may be directed by the judge, and give notice in writing of the date to the parties.

At the calling of the practice roll or in the course of a preparatory conference which, at the option of the judge, may be held by telephone the latter, after examining the questions in issue and discussing with the parties the evidence as it relates to the grounds of appeal may prescribe whatever steps are deemed appropriate to complete the record, settle questions relating to the written submissions and shorten the hearing. After establishing a timetable for the completion of the record the judge may continue the matter to a subsequent calling of the practice roll, fix a date for a further preparatory conference, or set a date forthwith for the hearing.

O.C. 1112-2001, s. 24.

25. Notwithstanding Article 281 of the Code, unless the appellant has indicated an intention to present an application in virtue of Article 282 of the Code, the record is compiled in the following manner:

(a)  upon being so ordered by the judge, the clerk of the court of first instance orders a complete or partial transcription of the evidence and of the judgment appealed from;

(b)  as soon as the transcript is complete, the clerk of the court of first instance shall so inform the clerk in writing. He shall also so inform the appellant and the respondent by priority post or by facsimile;

(c)  upon receipt of said notice the appellant shall, without delay, acquit the costs, if any, of the transcription. The clerk of the court of first instance shall thereupon forward the original of the transcription to the clerk with copies to the parties or to their counsel.

O.C. 1112-2001, s. 25.

26. In conformity with Article 284 of the Code the parties, unless exempted from doing so by the judge, file, within the time fixed by the latter, a written memorandum supported by appropriate references to the transcript, setting out the facts of the case, the arguments upon which they intend to rely and the case law and doctrine which they propose to invoke.

O.C. 1112-2001, s. 26.

(F) Powers of the Court

27. The Court may:

(a)  dismiss the appeal where the appellant is not ready to proceed when called upon to do so;

(b)  allow the appellant to proceed ex parte against a respondent who is not ready to proceed when called upon to do so;

(c)  upon motion or proprio motu, dismiss the appeal of an appellant who is in default to conform to the requirements prescribed by law or set out in these rules.

O.C. 1112-2001, s. 27.

IV. TRANSITORY PROVISIONS

28. (Omitted).

O.C. 1112-2001, s. 28.

REFERENCES

O.C. 1112-2001, 2001 G.O. 2, 5570