Motions and Applications

• Author: Brian H Greenspan/Vincenzo Rondinelli/Jonathan Dawe/Maureen McGuire/Michael Dineen/Mark Halfyard
• Pages: 69-86

69

Motions and

Applications

6

I. Introduction.............................................. 70

II. Bail Pending Appeal ....................................... 71

A. Indictable Appeals ................................... 71

B. Summary Conviction Appeals .......................... 78

C. Pre-Sentence Bail Pending Appeal ...................... 79

III. Motions to Stay Ancillary Orders ............................. 79

A. Stay of Driving Prohibitions (Section 320.25 of the

Criminal Code)...................................... 79

B. Suspension of Other Ancillary Orders (Section 683(5) of the

Criminal Code)...................................... 81

IV. Applications for Leave to Appeal ............................. 82

V. Motion to Extend Time to File an Appeal....................... 84

VI. Funding Orders (Sections 684 and 694.1 of the Criminal Code).... 84

VII. Motions to Intervene ...................................... 86

Copyright © 2025 Emond Montgomery Publications. All Rights Reserved.

70 Criminal Appeals

I. Introduction

This chapter deals with preliminary procedures in which one of the parties requests

some type of order or relief pending the hearing and f‌inal disposition of an appeal.

Common motions and applications include: applications for bail pending appeal;

motions to stay pending appeal ancillary or sentencing orders such as driving prohibi-

tions, probation orders, restitution orders and f‌ines; motions to extend the time period

to appeal or f‌ile a notice of application for leave to appeal; applications to have the

court fund an appeal; motions to permit a party to intervene; applications for leave to

appeal (required for sentence appeals and appeals to the court of appeal from a sum-

mary conviction appeal); and motions to admit fresh evidence on appeal (covered in

Chapter 7).

As courts of appeal are statutory courts, their jurisdiction to grant relief or make

orders is derived from the Criminal Code1 and governed by the court of appeal rules

of each province. This chapter will look at some of the common motions heard before

the court of appeal for both summary conviction and indictable matters. There is a

signif‌icant level of variance in procedures and practices between each of the provin-

cial appellate courts. It is, therefore, essential for counsel to consult applicable rules

of court and practice directions.

During the COVID-19 pandemic, courts across Canada experimented with virtual

hearing proceedings. Despite a return to in-person appeals, many courts have main-

tained the virtual video hearing process for single-judge chambers applications. In

Ontario, most single-judge oral motions are being heard remotely by video confer-

ence. Single-judge motions proceeding in writing continue to be heard in writing.2

Alberta similarly has maintained virtual hearings for chambers applications.3 The

Courts of Appeal in British Columbia, Quebec,4 Newfoundland, Nova Scotia, Prince

Edward Island, Saskatchewan, and the territorial courts, appear to default to in-

person chambers hearings, although with f‌lexibility for virtual hearings by request (or

if they are preferable when the motion is contested). The Court of Appeal of New

Brunswick’s updated directive takes the opposite approach, defaulting to virtual

hearings for motions “unless the motion judge or the Chief Justice directs

1 RSC 1985, c C-46.

2 Court of Appeal for Ontario, General Practice Direction Regarding All Proceedings in the Court of

Appeal (13 July 2023) at 83, online: <https://www.ontariocourts.ca/coa/how-to-proceed-

court/general>.

3 Court of Appeal of Alberta, Notices to the Profession and Public (20 April 2022), online: <ht t ps : //

www.albertacou rts.ca/ca/publications/notices/notice-to-the -profession-and-public -covid-19

-update-on-court-op erations>.

4 Court of Appeal of Quebec, Rules of the Court of Appeal of Quebec in Criminal Matters, s 55 (in

force 11 March 2024), online: /courdappelduquebec.ca/en/procedure-notices-and- forms/

rules-in-crim inal-matters-comi ng-into-force-march-11-2024/rules-in-criminal-matters>

[Quebec Rules in Criminal Matters].

Copyright © 2025 Emond Montgomery Publications. All Rights Reserved.