Appeals Alleging Ineffective Assistance or Incompetence of Counsel
40.19 (1) Where a notice of appeal, factum or appeal in writing includes a direct or indirect allegation that the appellant’s trial counsel was incompetent or for any other reason provided ineffective assistance, the counsel filing the notice of appeal, factum or appeal in writing and the respondent shall notify the clerk of the appeal court forthwith of the allegation.
(2) Upon being notified in accordance with subrule (1), the clerk of the appeal court shall set a date for the attendance of the parties for directions by a judge.
(3) Where a notice of appeal directly or indirectly raises the issue of incompetence or ineffective assistance of counsel at trial, the parties to the appeal shall comply with the Superior Court of Justice Protocol – Allegations of Incompetence (Schedule 1).
Time Estimates for Appeal Hearing
40.20 (1) Where the appellant’s factum is filed, a judge may review it and assign a time estimate for the hearing of the appeal.
(2) When a judge assigns a time estimate that is different from the appellant’s time estimate, the clerk of the appeal court shall notify the parties in writing of the change, and the content of subrule (3).
(3) Any time assigned for the hearing of the appeal by a judge, other than the judge hearing the appeal, is subject to revision by the judge hearing the appeal.
Hearings of Appeals from Sentence Only
40.21 On the appeal from sentence only, the appellant shall be limited to 15 minutes for oral argument, the respondent to 10 minutes, and the appellant to 5 minutes for reply, except with the leave of the judge hearing the appeal.
Failure to Appear for the Hearing of the Appeal
Failure to Appear
40.22 (1) Where an appellant fails to appear personally, or by a counsel of record, on the date and at the time fixed for the hearing a judge may, on proof that notice of hearing of the appeal has been given, dismiss the appeal for want of prosecution.
(2) Where a respondent fails to appear personally, or by a counsel of record, on the date and at the time fixed for the hearing of the appeal a judge may, upon being satisfied that the appellant has not him or herself defaulted under subrule (1), determine the appeal in the absence of the respondent or argument from the respondent, as the case may be.
Reasons for Judgment
Where Reasons in or Reduced to Writing
40.23 (1) In every appeal where reasons are given in writing or given orally and later reduced to writing, the clerk of the appeal court shall send a copy of the reasons:
(a) where an appellant or respondent has appeared in person, to the appellant or respondent, as the case may be,
(b) where the appellant or respondent has appeared by a counsel of record, to the counsel of record for the appellant or respondent, as the case may be,
(c) to the trial court from which the appeal was taken, and,
(d) to the Regional Senior Judge of the Ontario Court of Justice in the region in which the proceedings arose.
Where Reasons in Writing Not Given
(2) Where reasons in writing are not given, the clerk of the appeal court shall notify the trial court of the result of the appeal.
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