Supreme Court of Canada: Process and Advocacy, A Practical Guide for Practitioners


Published in The Canadian Bar Review
Vol. 75 March 1996 mars No. 1
Footnotes deleted
Full paper can be consulted at
The Canadian Bar Review
March 1996 Vol. 75 No.1 Pages 81-114

(The overview of SCC near the beginning of the article has been fully revised to bring it up-to- date with the new Rules of the SCC as they were brought in on June 28, 2002)

This practical article on process and advocacy at the Supreme Court of Canada was written by a former Executive Legal Officer of the Court who now works as a Supreme Court agent in Ottawa. It starts off with a chart of the main procedural steps, gives a summary of recent statistics on leaves to appeal and appeal, and after a review of each step in the leave to appeal and appeal process,makes practical suggestions for improved written and oral advocacy, and finally concludes with comments on arguing the Charter at the appellate level.

Cet article pratique traitant la manière de procéder et de plaider à la Cour suprême du Canada fut rédigé par un ancien adjoint éxécutif juridique de la Cour qui travaille maintenant comme correspondant pour la Cour suprême à Ottawa. L'article début par un tableau des principales étapes de la procédure, il donne un sommaire de statistiques récentes concernant les demandes de permissions de pourvoi et les pourvois et il passe en revue chaque étape du procédé d'une permission de pourvoi, et d'un pourvoi. On y trouvedes suggestions pratiques pour améliorer la plaidoirie orale et écrite et le tout termine par quelques commentaires sur la manière de plaider la Charte au niveau d'appel.

Table of Contents

Introduction
I Overview of SCC Process
II Necessity for a Local Agent
III Objective Summaries
IV Recent Statistics
V Process

  1. See Section I above
  2. Applying for Leave
  3. Appeals as of Right
    1. Pursuant to the Criminal Code â€" Main Provisions
    2. Pursuant to the Criminal Code â€" Subsidiary Provisions
    3. Pursuant to the Supreme Court Act
    4. Pursuant to Other Acts
  4. Interim Steps Before One is Heard on Appeal
    1. The Formal Order Granting Leave
    2. Notice of Appeal
    3. Deposit of Security
    4. Stating Constitutional Questions
    5. Case on Appeal
    6. Factums
    7. Book(s) of Authorities
    8. Inscription
    9. Sittings
    10. Time Periods
  5. The Hearing Itself
  6. The Judgment Process
  7. Miscellaneous Matters
    1. References to the Court
    2. Intervener Status
    3. Constitutional Questions
    4. Cross Appeals
    5. Stay of Proceeding/Stay of Execution
    6. Show Cause Hearings

VI Advocacy

  1. Making the Decision to Appeal at All
  2. The Leave to Appeal Application
  3. The Factum
    1. Importance
    2. Preparing to Draft
    3. Statement of Facts
    4. Points in Issue
    5. Legal Argument
  4. Arguing the Appeal
    1. A Proposal for Structuring the Argument
      1. Opening
      2. Points in Issue
      3. Review of the Evidence
      4. Review of the Law
    2. Oral Advocacy Before the Court
      1. Your Opening
      2. Knowing Your Material
      3. Preparing Your Oral Argument
      4. Delivering Your Oral Argument
        1. Style
        2. Don't Read Your Factum Out Loud
        3. Two Options: Argue from Your Notes, or Argue from Your Factum
        4. Start Strong
        5. Show Organization to Your Argument
      5. Your Conclusion
    3. Some “Do's” and “Don'ts”
  5. Questions from the Bench

VII Advocacy and the Charter
VIII The Role of Government Counsel
Conclusion

Introduction

This paper was originally written as a basic and non-academic introduction to practising before the Supreme Court of Canada for a provincial Attorney General staff conference. It deals with process before the Supreme Court of Canada, as well as various matters of practice, including advocacy. As government counsel very often appear before the Supreme Court of Canada, the paper includes a brief section on the role of government counsel in the Supreme Court of Canada. The paper is very deliberately practical and non-academic.

I. Overview of SCC Process (as compiled by Eugene Meehan, Q.C. â€" not an official SCC document)

The following chart shows the main steps in a Supreme Court of Canada proceeding.

Step

strong>Section/
Rule

Time Period

1. Leave to Appeal (LTA)

s.58(1)(a)
R. 25/26

"Serve & file within 60 days after the date of the judgment appealed from 1

  • structure and content see R. 25 (grey cover)
  • file original + 5 copies (previously 5 total)
  • for service see R. 26 & s. 58(1)(a)
    IMP: Rule 26: copy of Notice of Application to all other parties and interveners in the court appealed from (ordinary mail last known address); file with Registrar affidavit attesting to names of parties & interveners & addresses to which copies were sent
    IMP: for Appeals as of Right, it's 30 days (to file NoA), NOT 60
  • 2. Response (R)

    R. 27

    Serve & file within 30 days after service of LTA (previously 30 clear days)

  • original + 5 copies
  • green cover
  • 3. Reply (Ry)

    R. 28

    Serve & file within 10 days after service of Response (previously 7 clear days)

  • original + 5 copies
  • grey cover
  • 4. Leave to Cross Appeal

    R. 29

    Serve & file within 30 days after service of LTA/NoA if AoR

  • original + 5 copies
  • green cover
    IMP: R. 29(1)(b): copy of Notice of Application to all other parties & interveners in the court appealed from (ordinary mail last known address)
    R. 29(1)(c): file with Registrar affidavit attesting to names of parties & interveners & addresses to which copies sent
  • 5. Response to Cross-Appeal

    R. 30
    Form 29

    Serve & file within 30 days after service of Application for leave to Cross-Appeal

  • original + 5 copies
  • grey cover
  • 6. Reply to Cross-Appeal

    R. 31

    Serve and file within 10 days after service of Response

  • original + 5 copies
  • green cover
  • 7. Leave to Appeal
    Granted
    Dismissed
    With Costs
    Without Costs

    8. Judgment & Notice of Deposit of Judgment

    Sent by Clerk of Process within 1 week after LTA judgment.

    9. Order ("Formal Order granting Leave" - FOGL)

    (Now) done by SCC

    10. Notice of Appeal (NoA)

    s. 60(1)(a)
    s. 58(1)(b)
    s. 60(4)
    s. 63
    RR. 33-34
    Form 33

    Serve & file within 30 days of LTA granted, or 30 days of judgment appealed from if AoR2

  • file (within 21 days of NoA filed in SCC) copy with court appealed from (request in letter that court send their appeal court record to S.C.C. - write to client to see if they will do so/want us to).
    IMP: R. 33: if AoR, to include:
  • QoL on which dissenting judgment based
  • Judgment & reasons
  • Form 25B re: whether sealing order/publication ban
    IMP: R. 34: NoA must be sent to all other parties and interveners in the court appealed from (ordinary mail last known address); file with Registrar affidavit attesting to names of parties & interveners & addresses to which copies sent.
  • s.57: Appellant can limit grounds of appeal.
  • 10. Notice of
    Appeal (NoA)

    s. 60(1)(b)
    s. 64
    (amendment pending to abolish)

    Serve & file within 30 days of LTA granted, or 30 days of judgment appealed from if AoR2

  • file (within 21 days of NoA filed in SCC) copy with court appealed from (request in letter that court send their appeal court record to S.C.C.
  • write to client to see if they will do so/want us to).
    IMP: R. 33: if AoR, to include:· QoL on which dissenting judgment based
  • Judgment & reasons
  • Form 25B re: whether sealing order/publication banIMP: R. 34: NoA must be sent to all other parties and interveners in the court appealed from (ordinary mail last known address); file with Registrar affidavit attesting to names of parties & interveners & addresses to which copies sent.
  • s.57: Appellant can limit grounds of appeal.
  • 11. Security
    Deposit (SD)

    s. 60(1)(b)
    s. 64
    (amendment pending to abolish)

    $500 within 30 days of LTA judgment. Do at same time as NoA.
    Not if: criminal, habeas corpus, Federal Court, election cases, or "appeals by or on behalf of the Crown"

    12. Constitutional
    Question

    s. 60(1)(b)
    s. 64
    (amendment pending to abolish)

    Serve & file within 30 days after LTA has been granted or after filing NoA in appeal for which leave is not required 3

    13. Application
    to Intervene

    RR. 60-61

    LTA: within 30 days after filing of application for LTA
    Appeal: within 4 weeks after filing of factum of appellant

    14. Motion to Quash

    s. 44
    R. 63

    Within 30 days after filing of a proceeding (previously 60 days after NoA)

    15. "Case" or "Appeal Court Record"

    s. 63

    Sent by CA to SCC ("as soon as may be" after service of the NoA on the CA).

    16. Appellant's Factum
    (AF)
    Appellant's Record
    (AR)
    Appellant's Book of Authorities (ABA)
    If Cross-Appeal, see RR.35(3)-(4)36(2)(a)(i)43
    Form 29

    R. 35
    R. 38
    R. 40
    R. 42
    R. 44

    Serve & file within 12 weeks after filing NoA4 (ie 1 month less)If CQ, 12-week period starts running once CQ decided).
    Serve:

  • 3 copies Factum
  • 1 copy Record & Book of Auths.
  • 1 copy of Factum and Book of Auths. on intervener who requests
    File:
  • original + 23 copies Factum, & Record with Parts I & II
  • 12 copies of other volumes of Record
  • 14 copies Book of Auths.
    Factum: beige
    Record: orange
    Book of Auths.: beige
    Contents of Record: R. 38
    Printing of Record: R. 40
    Contents of Factum: R. 42
    Contents of Book of Auths.: R. 44
  • 17. Respondent's Factum (RF)

    Respondent'sRecord (RR)

    Respondent's Book of Authorities (RBA)

    R. 36
    R. 39
    R. 42
    R. 44

    Serve & file within 8 weeks of service of Appellant's Factum and Record
    Serve:

  • 3 copies Factum
    1 copy Record &Book of Auths.
  • 1 copy of Factum &Book of Auths. on intervener who requests
    File:
  • original + 11 copies Record
  • original + 23 copies Factum
  • 14 copies Book of Auths.
    Factum: green
    Record: grey
    Book of Auths.: green
    Contents of Record: R. 39
    Printing of Record: R. 40
    Contents of Factum: R. 42
    Contents of Book of Auths.: R. 44
  • 18. Intervener's Factum

    Intervener's Book of Authorities

    R. 37
    R. 44

    Serve & file within 8 weeks of order granting leave to intervene or if an Attorney General, within 20 weeks of the filing of a notice of intervention under R. 61(4)
    Serve:

  • 1copy (Factum & Book of Auths.)
    File:
  • original +23 copies Factum
  • 14 copies Book of Auths.
    Covers: blue
    Contents of Book of Auths.: R. 44
  • 19. Scheduling Appeal

    R. 69(2)

    After Respondent's factum is filed or due (8 weeks after AF) Registrar issues list of appeals and send notice of hearing to all parties.

    20. Condensed Book

    R. 45

    If Record & Book of Authorities 3 or more volumes
    Serve: 1 on all parties
    File:

  • 14 copies with Registrar on day of hearing
  • same colour as Factum
  • 21. Name of Counsel appearing at Appeal, to Registrar

    R. 71(4)

    At least 2 weeks before the appeal is heard [mark date here when informed of date of Appeal]

    22. Book of excerpts for Oral Argument

    Sopinka Book "Conduct of an Appeal"

    File in SCC & give to other counsel morning of appeal.

    23. Appeal
    Granted
    Dismissed
    With Costs
    Without Costs

    24. (Formal) Judgment

    Sent by Clerk of Process approx. 2 days after Judgment rendered.

    25. Application to Rehear

    R. 76

    Before judgment or within 30 days

    26. Payment out of Security for Costs

    R. 86

    No time period. On Motion to the Registrar.

    27. Discontinuance or Dismissal

    R. 93
    R. 64(LTA)
    s. 69R.65
    (appeal)

    No time period. On Motion to the Registrar.

    1. s. 58(2) and R. 5(3) - July does not count for LTA or NoA deadlines or other time periods except as specified in R. 5(3) (ie. record, factum or book of authorities at appeal stage).

    2. NoA must set out the provision of the statute that authorises the appeal. In the case of an appeal under Criminal Code see Rule 33(1)(d).

    3. Rule 60 now allows an A.G. to bring a Motion to state a constitutional question without being required first to obtain leave to intervene.

    4. R. 35(2): If a motion to state CQ filed, 12-week period starts running once CQ decided.

    Other Important Time Periods

    Motion to Court

    RR. 52-54

  • Original and 14 copies (grey cover)
  • Response: within 10 days after service of motion (green cover)
  • After Response filed/10 day period ended, Registrar sends notice of hearing
  • Motion to single Judge or Registrar

    RR. 47-51

  • Original and 2 copies
  • Motion related to LTA may be filed with LTA
  • Response: within 10 days after service
  • Reply: within 5 days after service
  • Abbreviations (for use herein or elsewhere)

    LTA : Leave to Appeal
    LTI : Leave to Intervene
    NoA : Notice of Appeal
    AoR : As of Right
    R : Response or Respondent
    Ry : Reply
    A : Applicant or Appellant
    CQ : Constitutional Question
    F : Factum
    AR : Appellant's Record
    AF : Appellant's Factum
    ABA : Appellant's Book of Authorities
    QoL: : Question of Law

    CoP : Clerk of Process
    NTP : Notice to Profession
    N/M : Notice of Motion
    SD : Security Deposit
    I : Intervener
    CA : Court of Appeal
    CC Criminal Code
    PoJ : Pronouncement of Judgment
    FJ : Formal Judgment
    RR : Respondent's Record
    RF : Respondent's Factum
    RBA : Respondent's Book of Authorities

    1. Motion to a Judge or the Registrar
      • Must include draft of Order sought including costs: Rule 47(1)(e)
    2. Computation of time
      1. Holiday: a holiday is not included in computing a period of less than 6 days (Rule 5(2))
      2. July: July not included in computation of time except for service and filing of:
        (1) Record (2) Factum (3) Book of Authorities (Rule 5(3))
      3. Time is otherwise computed according to Interpretation Act.
    3. Computation of Days
      1. new Rules make no reference to clear days
      2. all references to number of days refers to calendar days
      3. the day on which the first event occurs is excluded
      4. the day on which the second event occurs is included
        (s. 27(2) Interpretation Act)

    II Necessity for a Local Agent

    The Supreme Court Rules require a local agent be retained for appeals.

    III Objective Summaries

    At the outset, a useful practice point is to note the existence of a particularly useful document which is placed on the court file and which Ottawa Agents, but not all principal lawyers, may be aware of: “Objective Summaries” of court files, prepared by in-house counsel at the Supreme Court of Canada, at the leave to appeal stage, and also appeal stage which set out:

    • the nature of the case;
    • procedural history;
    • applicant's submissions;
    • respondent's submissions; and
    • grounds for appeal.

    This Objective Summary, which gives a quick overview of the whole court file, is placed on the public part of the file itself, and is accessible by simply photocopying it at the Court's Registry by any interested persons and counsel arguing the appeal. It may be read by judges of the Court or their law clerks.

    IV Recent Statistics

    The Supreme Court is a general court of appeal for Canada in both civil and criminal cases. There are two routes to the Court. First, applications for leave to appeal constitute approximately 70% of the Court's caseload. Second, appeals as of right constitute approximately the other 30% of the Court's caseload. About 125 appeals in virtually every area of law are heard each year, and approximately 450-500 leaves to appeal are decided each year. The most recent complete year for which statistics have been compiled by the Court is 1994, and the following are selected leave to appeal statistics:

    • of 445 applications for leave submitted in 1995, 84 had not been decided on December 31, 1995, but 10.6% of the total figure of 445 were ultimately granted leave (on average approximately 15-25% of leaves to appeal are granted in any year.)
    • areas of law for applications for leave to appeal:

      1993

      1994

      1995

      Criminal

      24%

      30%

      27%

      Charter

      11%

      11%

      8%

      Commercial

      8%

      8%

      8%

      Procedural

      12%

      11%

      12%

      Procedural

      12%

      11%

      12%

      Torts

      8%

      6%

      8%

      Labour

      4%

      4%

      8%

      Family

      --

      --

      4%

      Property

      5%

      4%

      3%

      Administrative

      8%

      6%

      7%

      Québec Civil Code

      2%

      2%

      2%

      Taxation

      4%

      3%

      3%

      Constitutional

      2%

      2%

      2%

      Others

      12%

      10%

      8%

    • Applications for Leave to Appeal, by Region/Court

      N.W.T. 1
      Yukon 1
      Court Martial Appeal Court 2

      P.E.I. 2
      Newfoundland 11
      New Brunswick 13
      Saskatchewan 15
      Manitoba 15
      Nova Scotia 20
      Alberta 48
      Federal Court of Appeal 49
      B.C. 58
      Québec 103

      A few additional statistics relevant to leaves:

      1. In 1990, 424 were received and referred, 91 (21.5%) granted;
      2. in 1991, 480 were received and referred, 83 (17.3%) granted;
      3. in 1992, 460 were received and referred, 77 (16.7%) granted;
      4. in 1993, 513 were received and referred, 84 (16%) granted;
      5. in 1994, 496 were received and referred, 77 granted (16%), 1 reserved;
      6. in 1995, 445 were received and referred, 47 granted (10.6%), 84 reserved.

    V Process

    (1) An Overview of the Main Procedural Steps for Leave to Appeal and Appeal

    1.

    Leave to Appeal:

    Serve and file application within 60 days after date of judgment appealed from.

    2.

    Response:

    Response within 30 clear days after the service of the Leave to Appeal.

    3.

    Reply:

    Serve and file Reply within 7 clear days after service of the Response.

    4.

    Notice of Appeal:

    Serve and file Notice within 30 days of Leave to Appeal being granted, or within 30 days of judgment appealed from if it is an Appeal as of Rights.

    5.

    Security:

    Post $500 within 30 days of Leave to Appeal being granted.

    6.

    Constitutional Question or Application to Intervene:

    Serve and file Notice of Motion to state a Constitutional Question or Application to Intervene within 60 days of the Notice of Appeal.

    7.

    Motion to Quash by Respondent:

    Make Motion to Quash within 60 days of Notice of Appeal.

    8.

    Case on Appeal by Appellant:

    Serve and file Case on Appeal within 3 months of Notice of Appeal.

    9.

    Appellant's Factum:

    Serve and file Factum within 4 months of Notice of Appeal.

    10.

    Respondent's Factum:

    Serve and file within 8 weeks of Appellant's Factum.

    11.

    Intervener's Factum:

    Serve and file within 4 weeks of Respondent's Factum.

    12.

    Book(s) of Authorities:

    No longer joint. Optional (but almost universal). Now to be filed at the same time as the Factum.

    13.

    Notice of Hearing:

    Appellant to serve within 10 days of the completion of the hearing list (the Rule, R. 44(4), does not require the notice to be filed, but it is common practice to do so).

    14.

    Excerpts of Material to be Referred to in Oral Argument:

    Optional (but recommended): submit not less than 2 days before appeal.

    15.

    Name of Counsel Appearing:

    Make available to Clerk of Process not less than 1 week before appeal.

    16.

    Length of Oral Submissions and Details Regarding Counsel Arguing the Appeal:

    Provide to Clerk of Process not less than 1 day before the appeal.

    17.

    Application to Rehear:

    Make application within 30 days of judgment.

    (2) Applying for Leave

    If the judgment appealed from is from a court of final resort in a province, there exists no jurisdictional limitations to the Court's power to grant leave to appeal. Previously, the Court did not have jurisdiction to grant leave where a court of appeal had refused leave. The Court does now, but it is not common. Previously, the Court did not have jurisdiction to grant leave where a court of appeal had refused leave. The Court does now, again. Further, the Court did not previously have jurisdiction to grant leave in either habeas corpus or committal decisions in extradition matters. It does now, again.

    As to the standard for granting leave â€" going back to basics â€" one looks to section 40(1) of the Supreme Court Act:

    by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in such question [the case is] one that ought to be decided by the Supreme Court or is, for any reason, of such a nature or significance as to warrant decision by it...

    There is of course a certain circularity in this “test”.

    Putting literally hundreds of decisions aside as to what is and what is not of public importance, Wilson J. said in a 1989 Charter decision:

    ...it is important to look not only at the impugned legislation [...] but also to the larger social, political and legal context.

    One may consider, as some do, filing an affidavit with the application for leave to appeal indicating why you are of the opinion the issues in the appeal are of public importance.

    For example, if one's case involves a provincial statute, look at other provinces' legislation to see if they have similar statutes, and if so, list excerpts from these other provinces' statutes as exhibits in an affidavit. In other words, suggest that all other provinces' legislation is also “on trial” when provincial legislation is in issue, emphasize the problem that a potential conflict between provincial statutes could produce, and the appropriate role of the Supreme Court of Canada in providing a national solution.

    In criminal cases, one would want to emphasize a question of law impacting on the administration of justice, or the Charter itself. In civil cases, one would want to emphasize important public issues, constitutional issues, or again, issues arising from the Charter itself. In both criminal and civil cases, conflicting opinions from different Courts of Appeal should, of course, be highlighted.

    Issues of relevance only to the parties, whether criminal or civil, tend not to get leave, unless serious legal error (one of public importance) can be identified.

    The Court almost always refuses to hear moot cases, or academic questions of law rendered moot either by subsequent statutory amendment, or by one party being unable to continue. This refusal appears to be motivated in part by the pressure of the docket of cases waiting to be heard.

    In terms of procedure:

    1. All leave applications must now be submitted in writing. One may request an oral hearing, but these are ordered only by the Court. Reasons must be clearly set out why an oral hearing is being requested. The oral hearing can be done by satellite video conference at no special cost to the parties.
    2. The leave application must be filed and served within 60 days of the judgment of the Court of Appeal below â€" time runs from the date judgment is announced (not signed or entered) â€" but July and August are not used to compute time. Criminal appeals, up until 1987, had 21 days; now the same time periods apply to both civil and criminal. One can apply for time periods to be extended, prospectively or retroactively. Time is computed (as to "clear days" etc.) in accordance with the Interpretation Act.
    3. The leave application normally consists of:
      1. a notice of application for leave to appeal;
      2. a supporting affidavit, if any;
      3. material intended to be relied on, in chronological order;
      4. judgments and reasons below (of all courts);
      5. memorandum of argument, divided as follows:
        Part I: Statement of Facts
        Part II: Points in Issue
        Part III: Argument
        Part IV: Nature of Order requested (and if appropriate, never forget to ask for costs)
        Part V: Table of Authorities
      6. excerpts of statutory enactments as an appendix

      New evidence requires a separate application.

    4. The Respondent now has 30 clear days to file a Response.
    5. The Applicant has 7 clear days to file a Reply to that Response.
    6. If the Applicant has not served and filed all materials necessary for an application for leave in the time prescribed, the Respondent may apply to dismiss the application, and if three months have elapsed, the Registrar may serve a notice on the parties that 15 days after service of same the application for leave will be dismissed as abandoned, and the Respondent's costs taxed.
    7. The internal court procedure (by virtue of a series of internal appendices A through D) is that:
      1. The leave is referred to a panel of three judges, together with an "Objective Summary" (which is public and placed on the court file) and covering memorandum prepared by in-house legal staff. A judge may also request his or her law clerk to prepare a “leave to appeal memo” which is reviewed by that judge, and often given to other judges.
      2. If the panel determines leave should be granted, other judges are consulted and their views sought, but the final decision rests with the original panel.
      3. If the panel determines leave should be refused, the other members of the Court are so advised in writing, and invited to give their reason(s) why it should in fact be granted. If any one judge so wishes, it is referred to Judges' Conference for discussion â€" but the original three decide.
      4. Leaves are cross-referenced within the Court, and judges are informed of the following: any other leave received; any received and referred; or any reserved appeal which has similar issues. If so, your application for leave may be held in abeyance while a decision is made on another leave or another appeal.

    (3) Appeals as of Right

    There are more than one would think:

    (a) Pursuant to the Criminal Code â€" Main Provisions

    1. by a person convicted of an indictable offence whose conviction is affirmed by the Court of Appeal â€" on any question of law on which a judge of the Court of Appeal dissents: s. 691(1)(a).
    2. by a person acquitted of an offence whose acquittal is set aside by the Court of Appeal â€" on a question of law: s. 691(2)(a) (a stay or quashing of an indictment is the equivalent of an acquittal, and so, if overturned gives rise to an appeal as of right.)
    3. by the Attorney General where the Court of Appeal sets aside a conviction and orders a new trial (the appeal as of right is by the Attorney General, not by the accused, because the accused is getting a new trial).
    4. by the Attorney General â€" on a question of law on which a judge of the Court of Appeal dissents: s. 693(1)(a).
    5. by the Attorney General or accused â€" where a writ of habeas corpus is refused: s. 784(3).44

    (b) Pursuant to the Criminal Code â€" Subsidiary Provisions

    1. by a person tried jointly with a person in (a)(ii) above even if the conviction is sustained in the Court of Appeal â€" on a question of law:] s. 691(2)(b).
    2. by a person found not guilty on account of insanity whose acquittal is affirmed (on that ground) in the Court of Appeal, or against whom a verdict of guilty is entered by the Court of Appeal (under s. 686(4)(b)(ii)) â€" on any question of law on which a judge in the Court of Appeal dissents: s. 92(1) and (3).
    3. by a person found unfit due to insanity to stand trial where that is affirmed by the Court of Appeal-on any question of law on which a judge in the Court of Appeal dissents: s. 692(1) and (3).

    (c) Pursuant to the Supreme Court

    1. an appeal from a provincial reference to the provincial Court of Appeal â€" where that province's statute says there is an appeal as of right: s. 36.
    2. a reference to the Court by the Governor in Council (or Senate or House of Commons) the Court here has original jurisdiction, and this is not therefore an appeal as of right per se.

    (d) Pursuant to Other Acts

    1. Competition Act
      â€" against an order of prohibition or dissolution on a question of law: s. 34(3).
    2. National Defence Act
      â€" against a decision of the Court Martial Appeal Court â€" on a question of law on which a judge dissents: s. 245.
    3. Dominion Controverted Elections Acts
      â€" against the final decision of a Superior Court after the trial of an election petition on any question of law or of fact: ss. 64-69.
    4. Young Offenders Act
      â€" in the case of indictable offences, pursuant to Part XVIII of the Criminal Code: s. 27(1)

    (4) Interim Steps Before One is Heard on Appeal

    (a) The Formal Order Granting Leave

    If leave to appeal is granted, the formal order is drafted by the appellant, approved by the respondent, then submitted to the Registrar of the Court for signature: RR. 22(4) and 54.

    The practice is that whoever makes an application or motion drafts the order. There is no specific time period in which to file the formal order granting leave.

    (b) Notice of Appeal

    The Notice of Appeal is served and filed within 30 days of Leave having been granted, or 30 days from the date of the judgment below in an appeal as of right. The notice of appeal, unlike the requirements in other appellate courts, need not set out the grounds of appeal, but can limit the grounds of appeal.

    (c) Deposit of Security

    There is no security deposit requirement in criminal cases.

    In civil cases it is $500 within 30 days of the service and filing of the notice of appeal.

    One can apply for exemption from the deposit and all other filing fees, based on a "motion in forma pauperis".

    (d) Stating Constitutional Questions

    If the constitutional validity or applicability of a law or regulation is intended to be challenged, a party (generally the appellant) must apply (the application is generally referred to the Chief Justice) to state a constitutional question within 60 days of the filing of the notice of appeal.

    Notice of same is sent to the Attorneys General of the Provinces and territorial Ministers of Justice for their consideration as to whether to intervene (that is, intervene as of right â€" they need not apply).

    If one is applying to state a constitutional question, be prepared to show exactly. where the issue was raised and dealt with by the Courts below.

    (e) Case on Appeal

    The appellant generally initiates an agreement as to the contents of the Case on Appeal, which is to be filed by the appellant within three months of the notice of appeal being filed, all in Supreme Court of Canada format.

    In the event of non-agreement as to contents, it is settled by the Court of Appeal below or a judge thereof, not by the Supreme Court of Canada.

    The respondent and interveners are served one copy each. Twenty-four copies of the Case on Appeal are filed with the Court.

    (f) Factums

    The appellant's factum has to be served and filed within four months of the notice of appeal.

    The respondent's factum is to be served and filed within eight weeks of the appellant's, and the intervenor's within four weeks of the respondent.

    Rules 33 and 37 â€" 41 deal with the preparation of factums. They should be read carefully. Staff are instructed to refuse for filing non-complying factums. Some of the more important aspects of these Rules are:

      1. length not more than 40 pages,excluding appendices;

    1. printing on left hand of pages;
    2. lines spaced one and one half lines apart; and
    3. appellant's cover buff, respondent's green, and intervener's blue.

    The detail is important â€" not only because failure to satisfy Rule 33(1)(c), which requires that every 10th line has to be numbered in the left-hand margin, can mean your factum is rejected â€" but because the closer your factum is to the standard format the judges normally see, the more readily accessible and credible your factum will be.

    Parties receive three copies of each other's factum. Interveners must serve one copy on each of the parties and on each other intervener. File 24 copies with the Clerk of Process.

    This writer refrains from a detailed review of the Rules as to technical compliance, though the following is a list of the items which are specifically double-checked by Court staff upon submission of the leave application: pursuant to a Court registry checklist, a copy of which checklist is remitted to counsel who have filed a factum not in compliance with the Rules (of course the writer has never seen [only heard of] such a checklist):

    • Required Documents:
      • number of copies received
      • 21.5 cm
      • printed on left side
      • appropriate print size
    • Cover Page:
      • colour
      • style of cause
      • nature of application
      • names and addresses of counsel and agents
    • Table of Contents:
      • material listed chronologically with dates
      • pages of material numbered consecutively
    • Notice of Application
      • Lower Court judgments:
      • formal trial court judgment
      • reasons of trial court
      • formal appeal court judgments
      • appeal court reasons
    • Memorandum of Argument:
      • statement of facts
      • points in issue
      • statement of argument
      • order requested
      • table of authorities
      • 20 pages maximum
      • signature of counsel

    (g) Books of Authorities

    These may be prepared (optional, but almost universal) and are now served and filed along with the factum.

    Books of authorities are no longer joint. Only important cases should be included, and significant passages highlighted or underlined.

    Ten copies are to be provided to the Clerk of Process, with one copy to each opposing counsel, and the intervener.

    (h) Inscription

    Inscribing the appeal is now time-triggered. The appellant can no longer control it because the Registrar automatically inscribes the appeal when the respondent's factum is filed or the time for same (eight weeks) has expired.

    The order and dates of each appeal are determined by the Court's Registry in consultation with the Chief Justice shortly before or shortly after the “inscription day”, which precedes each session.

    The Manager of the Process Registry informs your agent in Ottawa of the date, who then informs you. The Manager of the Process Registry may contact you directly. If the date given is not possible for you, an alternate date may in some circumstances be made available.

    In 1994, the average time lapse between the date of inscription and date of hearing was 3.83 months.

    (i) Sittings

    There are 3 sessions a year, commencing:

    1. late January;
    2. late April; and
    3. early October

    A session lasts six weeks, with hearings two weeks on and two weeks off for Court sittings.

    (j) Time Periods

    July and August do not count in the computation of most time periods â€" except for the appellant's factum, respondent's factum, and Case on Appeal.

    (5) The Hearing Itself

    There are generally two appeals a day â€" if one needs more time you have to apply for it in advance (and such motions generally go to the Chief Justice).

    Morning appeals now commence at 9:45 a.m., and the afternoon appeals at 2:00 p.m.

    Each side has one hour each, and the appellant may split the time between argument and reply. If the appellant uses the entire hour allotted for argument in the principal argument, five minutes will be allotted for reply. If the appellant does not use the entire hour for principal argument, up to a maximum of fifteen minutes can be put over for reply, which, together with the normal five minutes for reply, can be used for a total of twenty minutes.

    There is no Queen's (or King's) Counsel table. The appellant sits on the left, while the respondent sits on the right. Interveners sit behind the appellant and respondent, depending on whom they are supporting â€" and there are no chairs in the middle.

    Counsel are of course gowned. One may request the presence of a non-lawyer (or non-Canadian lawyer) at one's table by rising at the beginning to so request of the Chief Justice or senior judge presiding.

    When the Chief Justice or senior judge calls one's name (it is read from the "counsel sheet" prepared that morning â€" on arrival, make sure you check in with the