INDEX
PART I – GENERAL MATTERS
Rule 1 : Citation, Application and Interpretation
Rule 2 : Non-Compliance with the Rules
Rule 3 : Time
Rule 4 : Court Documents
Rule 5 : Service of Documents
Rule 6 : Applications
Rule 7 : Practice Directions
PART II – PRE-TRIAL PROCEEDINGS
Rule 20 : Release of Exhibits for Scientific Testing
Rule 21 : Application to Change the Venue of Trial
Rule 22 : Applications to Procure Attendance of Prisoners
Rule 23 : Applications to Take Evidence on Commission
Rule 24 : Applications for Removal as Counsel of Record
Rule 25 : Applications for Adjournment
Rule 26 : Constitutional Issues
Rule 27 : Pre-Hearing Conferences
Rule 28 : Applications for Severance of Accused or Counts
Rule 29 : Applications for Particulars
PART III – TRIAL PROCEEDINGS AND EVIDENCE
Rule 30 : Exclusion of Evidence
Rule 31 : Application to Adduce Evidence of Complainant’s Sexual Activity
Rule 32 : Applications For Production of Records not in Possession of Prosecutor
FORMS
Form 1 : Notice of Application
Form 2 : Backsheet
Form 3 : Affidavit [r.4]
Form 4 : Notice of Application and Constitutional Issue [r.26]
Form 5 : Acknowledgment of Receipt Cart [r.5]
Form 6 : Affidavit of Service [r.5]
Form 7 : Notice of Abandonment [r.6.14]
Form 8 : Order Releasing Exhibit(s) for Scientific Testing [r.20]
Form 9 : Order for Change of Venue of Trial [r.21]
Form 10(a) : Order for Attendance of Prisoner at Court Proceeding [r.22]
Form 10(b) : Order for Transfer of Prisoner or Person in the Custody of a Peace Officer to Custody of Peace Officer [r.22]
Form 11 : Commission [r.23]
Form 12 : Letter of Request [r.23]
Form 13 : Order for Commission and Letter of Request [r.23]
Form 14 : Pre-Hearing Converence Report [r.27]
Form 15 : Requisition [r.4.09]
RULES OF THE ONTARIO COURT OF JUSTICE
IN CRIMINAL PROCEEDINGS
PART I
GENERAL MATTERS
RULE 1 – CITATION, APPLICATION AND INTERPRETATION
CITATION
Title
1.01 (1) These rules may be cited as the Rules of the Ontario Court Of Justice in Criminal Proceedings.
Subdivision
(2) In these rules,
(a) all the provisions identified by the same number to the left of the decimal point comprise a Rule (for example, Rule 1, which consists of rules 1.01 to 1.06);
(b) a provision identified by a number with a decimal point is a rule (for example, rule 1.01); and
(c) a rule may be subdivided into
(i) subrules (for example, subrule 1.01(1)),
(ii) clauses (for example, clause 1.01(2)(a) or 4.06(1)(b)), and
(iii) subclauses (for example, subclause 1.01(2)(c)(i) or 4.08(11)(a)(i)).
Alternative References
(3) In a proceeding in the court, it is sufficient to refer to a rule or subdivision of a rule as a “rule” followed by the number of the rule, subrule, clause or subclause (for example, rule 1.01, rule 1.01(2), rule 1.01(2)(c), rule 1.01(2)(c)(iii)).
APPLICATION OF RULES
Ontario Court of Justice
1.02 (1) These rules are enacted pursuant to subsection 482(2) of theCode and apply to prosecutions, proceedings and applications, as the case may be, within the jurisdiction of the Ontario Court of Justice, instituted in relation to any matter of a criminal nature or arising from or incidental to any such prosecution, proceeding or application.
Transitional Provisions
(2) These rules come into force on January 1, 1998.
(3) If on January 1, 1998, section 8 of the Courts Improvement Act,1996, S.O. 1996, c. 25, has not been proclaimed in force any reference in these rules to the “Ontario Court of Justice” shall be read as a reference to the “Ontario Court (Provincial Division)” and the references in rule 7 to “Chief Justice” and “Regional Senior Justice” shall be read as a reference to “Chief Judge” and “Regional Senior Judge”, respectively..
DEFINITIONS
1.03 In these rules, unless the context otherwise requires,
“affidavit” means a written statement in Form 3 confirmed by oath, or a solemn affirmation; (affidavit)
“applicant” means a person who makes an application; (requérant)
“application” means a proceeding commenced by notice of application in Form 1, whether described in the enabling legislation or other authority as an application or motion; (demande)
“Charter” means the Canadian Charter of Rights and Freedoms; (Charte)
“clerk” means a clerk of the court; (greffier)
“Code” means Criminal Code; (Code)
“counsel” means a barrister and solicitor entitled to practise in the province of Ontario; (avocat)
“counsel of record” means the counsel who represents or represented the accused in the proceedings that are the subject of the application; (procureur)
“county” includes a group of counties, district or a regional, district or metropolitan municipality; (comté)
“court” means the Ontario Court of Justice for the court location in the county, district or region in which a proceeding is commenced or pending or being heard, as the case may be; (tribunal)
“court office” means the office of the clerk for the court location in the county, district or region in which the proceeding is commenced or pending or being heard, as the case may be; (greffe)
“deliver” means serve and file with proof of service, and “delivery” has a corresponding meaning; (remettre)
“document” includes a notice of application, affidavit or any other material required or permitted to be served and filed under these rules; (document)
“hearing” means the hearing of an application, motion, preliminary inquiry or a trial; (audience)
“holiday” means
(i) any Saturday or Sunday,
(ii) New Year’s Day,
(iii) Good Friday,
(iv) Easter Monday,
(v) Victoria Day,
(vi) Canada Day,
(vii) Civic Holiday,
(viii) Labour Day,
(ix) Thanksgiving Day,
(x) Remembrance Day,
(xi) Christmas Day,
(xii) Boxing Day, and
(xiii) any special holiday proclaimed by the Governor General or the Lieutenant Governor, and
(xiv) where New Year’s Day, Canada Day or Remembrance Day falls on a Saturday or Sunday, the following Monday is a holiday, and where Christmas Day falls on a Saturday or Sunday, the following Monday and Tuesday are holidays, and where Christmas Day falls on a Friday, the following Monday is a holiday; (jour férié)
“information” includes
(a) a count in an information, and
(b) a complaint in respect of which a judge is authorized by an Act of Parliament or an enactment made thereunder to make an order; (dénonciation)
“judge” means a judge of the court and includes a justice of the peace where the context requires; (juge)
“judgment” means a decision that finally disposes of an application, preliminary inquiry, trial or other proceeding on its merits and includes a judgment entered in consequence of the default of a party; (jugement)
“order” includes a judgment; (ordonnance)
“proceeding” includes a trial, application, preliminary inquiry or other hearing; (instance)
“prosecutor” means the Attorney General or, where the Attorney General does not intervene, means the person who institutes proceedings to which the Code applies, and includes counsel acting on behalf of either of them; (poursuivant)
“region” means a region described in Revised Ontario Regulation 186/90; (région)
“respondent” means a person against whom an application is made; (intimé)
“statute” includes the Code and any other statute passed by the Parliament of Canada to which the Code provisions apply. (loi)
INTERPRETATION
General Principle
1.04 (1) These rules are intended to provide for the just determination of every criminal proceeding, and shall be liberally construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.
Matters Not Provided For
(2) Where matters are not provided for in these rules, the practice shall be determined by analogy to them.
Party Not Represented by Counsel
(3) Where an accused is not represented by counsel, anything that these rules require or permit counsel to do shall be done by or on behalf of the accused.
APPLICATION OF CODE PROVISIONS
1.05 The interpretation sections of the Code apply to these rules.
FORMS
1.06 The forms prescribed in the Appendix of Forms shall be used where applicable and with such variations as the circumstances require.
RULE 2 – NON-COMPLIANCE WITH THE RULES
EFFECT OF NON-COMPLIANCE
2.01 A failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity, and the court,
(a) may grant all necessary amendments or other relief in accordance with rule 2.02, on such terms as are just, to secure the just determination of the real matters in dispute; or
(b) only where and as necessary in the interests of justice, may set aside the proceeding or a step, document or order in the proceeding in whole or in part.
COURT MAY DISPENSE WITH COMPLIANCE
2.02 The court may, only where and as necessary in the interests of justice, dispense with compliance with any rule at any time.
RULE 3 – TIME
COMPUTATION
3.01 (1) In the computation of time under these rules or an order, 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 7 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.
(2) Where a time of day is mentioned in these rules or in any document in a proceeding, the time referred to shall be taken as the time observed locally.
EXTENSION OR ABRIDGMENT
General Powers of Court
3.02 (1) Subject to subrule (3), the court may by order extend or abridge any time prescribed by these rules or an order in accordance with rule 2.02, on such terms as are just.
(2) An application for an order extending time may be made before or after the expiration of the time prescribed.
Consent in Writing
(3) Any time prescribed by these rules for serving, filing or delivering a document may be extended or abridged by consent in writing endorsed on the relevant document by the party to whom the document is intended, or in such other form as a judge of the court may direct.
RULE 4 – COURT DOCUMENTS
FORMAT
4.01 Every document in a proceeding shall be of good quality paper 216 millimetres by 279 millimetres in size and the text shall be printed, typewritten, written or reproduced legibly with double spaces between the lines and a margin of approximately 40 millimetres on the left-hand side.
CONTENTS
General Heading
4.02 (1) Every document in a proceeding shall have a heading in accordance with Form 1 (Notice of Application) that sets out
(a) the name of the court and the information number; and
(b) the title of the proceeding in accordance with Rule 6 (Applications), but in a document other than a record, order or report, where there are more than two parties to the proceeding, a short title showing the names of the first party on each side followed by the words “and others” may be used.
Body of Document
(2) Every document in a proceeding shall contain
(a) the title of the document;
(b) its date;
(c) where the document is filed by a party and not issued by a clerk, the name, address and telephone number of counsel filing the document or, where a party is not represented by counsel, the name of the party, address for service and telephone number; and
(d) where the document is issued by a clerk, the address of the court office in which the proceeding was commenced.
Backsheet
(3) Every document in a proceeding shall have a backsheet in accordance with Form 2 that sets out,
(a) the short title of the proceeding;
(b) the name of the court and the information number;
(c) in the case of an affidavit, the deponent’s name and the date when he or she swore or confirmed it;
(d) the location of the court office in which the proceeding was commenced;
(e) the title of the document; and
(f) the name, address and telephone number of counsel serving or filing the document or, where a party is not represented by counsel, the name of the party, address for service and telephone number.
CERTIFIED COPIES OF COURT DOCUMENTS
4.03 At the request of a person entitled to see and to receive a copy of a document in a court file, the clerk shall issue a certified copy of the document upon payment of the prescribed fee.
NOTICE TO BE IN WRITING
4.04 Where these rules require notice to be given, it shall be given in writing.
FILING OF DOCUMENTS
Place of Filing
4.05 (1) All documents required to be filed in a proceeding shall be filed in the court office for the place where the proceeding was commenced or pending or being heard, as the case may be, except where they are filed in the course of a hearing or where these rules provide otherwise.
(2) An affidavit, transcript, record or factum to be used on the hearing of an application shall be filed in the court office for the place where the hearing is to be held.
Filing by Leaving in Court Office or by Mail
(3) Any document, other than one that is to be issued, may be filed by leaving it in the proper court office or mailing it to the proper court office accompanied by, where applicable, the prescribed fee.
Date of Filing where Filed by Mail
(4) Where a document is filed by mail, the date of the filing stamp of the court office on the document shall be deemed to be the date of its filing, unless the court orders otherwise in accordance with rule 2.02.
Where Document Filed by Mail not Received
(5) Where a court office has no record of the receipt of a document alleged to have been filed by mail, the document shall be deemed not to have been filed, unless the court orders otherwise in accordance with rule 2.02.
AFFIDAVITS
Format
4.06 (1) An affidavit used in a proceeding shall
(a) be in Form 3;
(b) be expressed in the first person;
(c) state the full name of the deponent and, if the deponent is a party or counsel, officer, director, member or employee of a party, shall state that fact;
(d) be divided into paragraphs, numbered consecutively, with each paragraph being confined as far as possible to a particular statement of fact; and
(e) be signed by the deponent and sworn or affirmed before a person authorized to administer oaths or affirmations.
Contents
(2) An affidavit shall be confined to a statement of facts within the personal knowledge of the deponent or to other evidence that the deponent could give if testifying as a witness in court, except that an affidavit may contain statements of the deponent’s information and belief with respect to facts that are not contentious, provided that the source(s) of the information and the fact of belief are specified in the affidavit, or except where these rules provide otherwise.
Exhibits
(3) An exhibit that is referred to in an affidavit shall be marked as such by the person taking the affidavit and where the exhibit
(a) is referred to as being attached to the affidavit, it shall be attached to and filed with the affidavit;
(b) is referred to as being produced and shown to the deponent, it shall not be attached to the affidavit or filed with it, but shall be left with the clerk for the use of the court, and on the disposition of the matter in respect of which the affidavit was filed, and after the appeal period has expired, the exhibit shall be returned to counsel or the party who filed the affidavit, unless the court orders otherwise in accordance with rule 2.02; and
(c) is a document, a copy shall be served with the affidavit, unless it is impractical to do so.
By Two or More Deponents
(4) Where an affidavit is made by two or more deponents, there shall be a separate jurat for each deponent, unless all the deponents make the affidavit before the same person at the same time, in which case one jurat containing the words “Sworn (or Affirmed) by the above-named deponents” may be used.
For a Corporation
(5) Where these rules require an affidavit to be made by a party and the party is a corporation, the affidavit may be made for the corporation by an officer, director or employee of the corporation.
Alterations
(6) Any interlineation, erasure or other alteration in an affidavit shall be initialled by the person taking the affidavit and, unless so initialled, the affidavit shall not be used without leave of the presiding judge or officer.
BINDING OF RECORDS AND TRANSCRIPTS
4.07 (1) Application records shall have a white backsheet of 176g/m2weight cover stock.
(2) Transcripts of evidence for use on an application, preliminary inquiry or at trial shall have a light blue backsheet of 176g/m2 weight cover stock.
TRANSCRIPTS
Paper Size
4.08 (1) Evidence shall be transcribed on paper 216 millimetres by 279 millimetres in size with a margin 25 millimetres wide on the left side delimited by a vertical line.
Heading
(2) The name of the court or, in the case of an examiner, the examiner’s name, title and location shall be stated on a single line no more than 15 millimetres from the top of the first page.
Standards
(3) The text shall be typewritten on thirty-two lines numbered in the margin at every fifth line.
(4) Headings, such as “Swearing of a Witness”, “Direct Examination and “Cross-examination”, shall be capitalized and separated from the proceeding text by the space of a numbered line, and the number of lines of text on the page may be reduced by one for each heading that appears on the page.
(5) Every question shall commence on a new line and shall begin with the designation “Q.”, followed within 10 millimetres, by the question.
(6) Every answer shall commence on a new line and shall begin with the designation “A.”, followed within 10 millimetres, by the answer.
(7) The first line of a question or answer shall be indented 35 millimetres from the margin and shall be 130 millimetres in length.
(8) In a transcript of evidence taken in court, every line of a question or answer, other than the first line, shall begin at the margin and shall be 165 millimetres in length.
(9) In a transcript of evidence taken out of court, every line of a question or answer, other than the first line, shall begin 15 millimetres from the margin and shall be 150 millimetres in length, and questions shall be numbered consecutively by means of a number placed in the 15 millimetres to the right of the margin.
(10) Lines of text other than questions and answers shall be indented 35 millimetres from the margin and shall be 130 millimetres in length.
(11) Every transcript of evidence taken in or out of court shall have
(a) a cover page setting out
(i) the court,
(ii) the title of the proceeding,
(iii) the nature of the hearing or examination,
(iv) the place and date of the hearing or examination,
(v) the name of the presiding judge or officer, and
(vi) the names of counsel; and
(b) a table of contents setting out
(i) the name of each witness with the page number at which the examination, cross-examination and re-examination of the witness commence,
(ii) the page number at which the reasons for judgment commence,
(iii) a list of the exhibits with the page number at which they were made exhibits, and
(iv) at the foot of the page, the date the transcript was ordered, the date it was completed and the date the parties were notified of its completion.
TRANSMISSION OF DOCUMENTS
4.09 (1) Where documents filed with the court or exhibits in the custody of an officer are required for use at another location, the clerk shall send them to the clerk at the other location on receipt of a party’s requisition in Form 15.
(2) Documents or exhibits that have been filed at or sent to a location other than where the proceeding was commenced for a hearing at that location shall be sent by the clerk, after completion of the hearing, to the clerk at the court office where the proceeding was commenced.
NOTICE OF CONSTITUTIONAL ISSUE
4.10 Where an issue is raised as to the constitutionality of a statutory provision or rule of law, the party raising the issue shall serve a notice of constitutional issue in Form 4.
RULE 5 – SERVICE OF DOCUMENTS
GENERAL RULES FOR MANNER OF SERVICE
Notices of Application and Other Documents
5.01 (1) A notice of application or other document need not be served personally, or by an alternative to personal service, unless these rules or an order of the court requires personal service or an alternative to personal service.
(2) Any document that is not required to be served personally or by an alternative to personal service
(a) shall be served on a party who has counsel of record by serving counsel in a manner provided in rule 5.05; and
(b) may be served on a party not represented by counsel or on a person who is not a party,
(i) by mailing a copy of the document to the last address for service provided by the party or person or, if no such address has been provided, to the party’s or person’s last known address, or
(ii) by personal service or by an alternative to personal service.
PERSONAL SERVICE
5.02 (1) Where a document is to be served personally, the service shall be made
Individual
(a) on an individual, by leaving a copy of the document with the individual;
Corporation
(b) on any corporation, by leaving a copy of the document with an officer, director or agent of the corporation, or with a person at any place of business of the corporation who appears to be in control or management of the place of business;
Judge
(c) on any judge, by leaving a copy of the document with the judge, or with a person in charge of the court office in the county, district or region where the adjudication was or is to be made;
Attorney General of Canada
(d) on the Attorney General of Canada, by leaving a copy of the document with the regional office of the Attorney General of Canada at Toronto, the office of the Attorney General of Canada at Ottawa or the office of the prosecutor retained by the Attorney General of Canada having carriage of the proceedings; and
Attorney General of Ontario
(e) on the Attorney General of Ontario, by leaving a copy of the document at the office of the Crown Attorney in the county, district or region having carriage of the proceedings.
(2) A person effecting personal service of a document need not produce the original document or have it in his or her possession.
ALTERNATIVES TO PERSONAL SERVICE
Where Available
5.03 (1) Where these rules or an order of the court permit service by an alternative to personal service, service shall be made in accordance with this rule.
Acceptance of Service by Counsel
(2) Service on a party who has counsel may be made by leaving a copy of the document with counsel, or an employee in counsel’s office, but service under this subrule is effective only if counsel endorses on the document or a copy of it an acceptance of service and the date of acceptance.
(3) By accepting service counsel shall be deemed to represent to the court that counsel has the authority of his or her client to accept service.
Service by Mail to Last Known Address
(4) Service of a document may be made by sending a copy of the document together with an acknowledgment of receipt card (Form 5) by mail to the last known address of the person to be served, but service by mail under this subrule is effective,
(a) only if the acknowledgment of receipt card or a post office receipt bearing a signature that purports to be the signature of the person to be served is received by the sender; and
(b) on the date on which the sender first receives either receipt, signed as provided by clause (a).
Service at Place of Residence
(5) Where an attempt is made to effect personal service at a person’s place of residence and for any reason personal service cannot be effected, the document may be served
(a) by leaving a copy, in a sealed envelope addressed to the person, at the place of residence with anyone who appears to be an adult member of the same household; and
(b) on the same day or the following day by mailing another copy of the document to the person at the place of residence, and service in this manner is effective on the fifth day after the document is mailed.
Service on a Corporation
(6) Where the head office or principal place of business of a corporation cannot be found at the last address recorded with the Ministry of Consumer and Commercial Relations, service may be made on the corporation by mailing a copy of the document to the corporation at that address.
SUBSTITUTED SERVICE OR DISPENSING WITH SERVICE
Where Order May be Made
5.04 (1) Where it appears to the court that it is impractical for any reason to effect prompt personal service of a notice of application or any other document required to be served personally or by an alternative to personal service under these rules, the court may make an order for substituted service or, where necessary in the interests of justice, may dispense with service.
Effective Date of Service
(2) In an order for substituted service, the court shall specify when service in accordance with the order is effective.
(3) Where an order is made dispensing with service of a document, the document shall be deemed to have been served on the date of the order for the purpose of the computation of time under these rules.
SERVICE ON COUNSEL OF RECORD
5.05 (1) Service of a document on counsel of record of a party may be made by
(a) mailing a copy to counsel’s office;
(b) leaving a copy with counsel or employee in counsel’s office;
(c) depositing a copy at a document exchange of which counsel is a member or subscriber, but service under this clause is effective only if the document or a copy of it and the copy deposited are date stamped by the document exchange in the presence of the person depositing the copy; or
(d) telephone transmission of a facsimile of the document in accordance with subrule (3).
(2) Service of a document by depositing a copy at a document exchange under clause (1)(c) is effective on the day following the day on which it was deposited and date stamped, unless that following day is a holiday, in which case service is effective on the next day that is not a holiday.
(3) A document that is served by telephone transmission shall include a cover page indicating the
(a) sender’s name, address and telephone number;
(b) name of counsel of record to be served;
(c) date and time of transmission;
(d) total number of pages transmitted, including the cover page;
(e) telephone number from which the document is transmitted; and
(f) name and telephone number of a person to contact in the event of transmission problems.
SERVICE BY MAIL
Manner of Service
5.06 (1) Where a document is to be served by mail under these rules, a copy of the document shall be sent by prepaid first class mail or by registered or certified mail.
Effective Date
(2) Service of a document by mail, except under subrule 5.03(4), is effective on the fifth day after the document is mailed.
WHERE DOCUMENT DOES NOT REACH PERSON SERVED
5.07 Even though a person has been served with a document in accordance with these rules, the person may show on a motion to set aside the consequences of default, for an extension of time or in support of a request for an adjournment, that the document
(a) did not come to his or her notice; or
(b) came to his or her notice only at some time later than when it was served or is deemed to have been served.
VALIDATING SERVICE
5.08 Where a document has been served in a manner other than one authorized by these rules or an order, the court may make an order validating the service where the court is satisfied that
(a) the document came to the notice of the person to be served; or
(b) the document was served in such a manner that it would have come to the notice of the person to be served, except for the person’s own attempts to evade service.
PROOF OF SERVICE
Affidavit of Service
5.09 (1) Service of a document may be proved by an affidavit of the person who served it in Form 6.
Counsel of Record’s Admission or Acceptance
(2) Counsel of record’s written admission or acceptance of service is sufficient proof of service and need not be verified by affidavit.
Document Exchange
(3) Service of a document under clause 5.05(1)(c) (document exchange) may be proved by the date stamp on the document or a copy of it.
RULE 6 – APPLICATIONS
APPLICATION OF THE RULE
6.01 (1) Where the Code, or other federal enactment to which the procedural provisions of the Code apply, authorizes, permits or requires that an application or motion be made to or an order or determination made by a judge, other than a judge presiding at preliminary inquiry or trial, the application shall be commenced by a Notice of Application in Form 1.
(2) Rules 6.01 to 6.14 apply to all proceedings commenced by a Notice of Application, except where otherwise expressly provided by these rules or as otherwise ordered by a judge of the court in accordance with rule 2.02.
APPLICATIONS – TO WHOM TO BE MADE
6.02 An application shall be made to a judge of the court for the court location in the county, district or region in which the proceeding is being or is to be held, unless otherwise provided by these rules.
CONTENT OF NOTICE
6.03 (1) Every Notice of Application in Form 1 shall state
(a) the place and date of hearing in accordance with rule 6.02 and any other rule relating thereto;
(b) the precise relief sought;
(c) the grounds to be argued, including a reference to any statutory provision or rule to be relied upon;
(d) the documentary, affidavit and other evidence to be used at the hearing of the application; and
(e) whether any order is required abridging or extending the time for service or filing of the Notice of Application or supporting materials required under these rules.
SERVICE OF NOTICE
Generally
6.04 (1) The Notice of Application shall be served on all parties and, where there is uncertainty whether anyone else should be served, the applicant may make a motion without notice to a judge for an order for directions.
Minimum Notice Period
(2) Except where otherwise expressly provided by the Code or these rules, or as ordered by a judge of the court in accordance with rule 2.02, the Notice of Application shall be served at least 15 days before the date of the hearing of the application.
Filing Proof of Service
(3) Except where otherwise expressly provided by the Code or these rules, or except as ordered by a judge of the court in accordance with rule 2.02, the Notice of Application shall be filed with proof of service not later than 10 days before the date of the hearing of the application, in the court office for the place where the application is to be heard.
MATERIAL FOR USE ON APPLICATIONS
Application Record and Factum
6.05 (1) The applicant shall
(a) serve an application record, together with a factum prepared in accordance with rule 6.07 where a judge of the court orders that a factum shall be filed or these rules expressly provide for the filing of a factum, at least 15 days before the hearing, on every respondent; and
(b) file the application record, including any factum, with proof of service, not later than 10 days before the date of the hearing of the application, in the court office for the place where the application is to be heard.
(2) The applicant’s application record shall contain, in consecutively numbered pages arranged in the following order:
(a) a table of contents describing each document, including each exhibit, by its nature and date and, in the case of an exhibit, by exhibit number or letter;
(b) a copy of the Notice of Application;
(c) a copy of the information to which the application relates;
(d) a copy of all affidavits and other material served by the applicant and any party other than the respondent for use on the application;
(e) a list of all relevant transcripts of evidence in chronological order, but not necessarily the transcripts themselves; and
(f) a copy of any other material in the court file that is necessary for the hearing of the application.
Respondent’s Application Record and Factum
(3) The respondent shall, where a judge of the court orders that a factum shall be filed or these rules expressly provide for the filing of a factum, serve on every other party a factum prepared in accordance with rule 6.08 and may, where the respondent is of the opinion that the application record is incomplete, serve on every other party a respondent’s application record containing, in consecutively numbered pages arranged in the following order,
(a) a table of contents describing each document, including each exhibit, by its nature and date and in the case of an exhibit, by exhibit number or letter, and
(b) a copy of any material to be used by the respondent on the application and not included in the application record.
The respondent’s application record, including any factum, shall be filed, with proof of service, in the court office for the place where the application is to be heard, not later than 5 days before the date of the hearing of the application.
Dispensing with Record and Factum
(4) Where and as necessary in the interests of justice, a judge before or at the hearing of the application, may dispense with compliance with this rule in whole or in part.
Documents May be Filed as Part of Record
(5) Any documents served by a party for use on an application may be filed, together with proof of service, as part of the party’s application record and need not be filed separately if the record is filed within the time prescribed for filing the notice or other material.
Transcript of Evidence
(6) A party who intends to refer to a transcript of evidence at the hearing of an application shall file a copy of the transcript as provided by rule 4.08.
FACTUMS
Application of the Rule
6.06 (1) Where a factum is required by order of a judge of the court or these rules expressly provide for the filing of a factum, this rule and rules 6.07 to 6.09 apply with necessary modifications to all applications.
General Requirement
(2) Where a factum is required by order of a judge of the court or these rules expressly provide for the filing of a factum, all parties to an application and persons who have been granted the right to be heard shall deliver a factum, to be entitled on its cover as “Applicant’s Factum”, “Respondent’s Factum” or “Intervenor’s Factum”, as the case may be.
Signatures on Factums
(3) All factums shall be signed by counsel or on counsel’s behalf by someone specifically authorized to do so or, where a party is not represented by counsel, by the applicant or respondent, as the case may be, and the signature shall be followed by the typed name of counsel, if any, and the date.
APPLICANT’S FACTUM
Filing and Service
6.07 (1) Every applicant shall prepare an “Applicant’s Factum” and shall file in the court office for the place where the application is to be heard one copy with proof of service thereof on all other parties and persons who have been granted the right to be heard in the proceeding.
Time for Delivery
(2) The factum prepared on behalf of the applicant shall be served and filed in accordance with rule 6.05.
Contents
(3) The applicant’s factum shall consist of
(a) Part I, entitled “Statement of the Case”, which shall contain a statement identifying the applicant, the court in which the proceedings arise, the nature of the charge or charges, the result in that court and the nature of each order to which the application relates,
(b) Part II, entitled “Summary of the Facts”, which shall contain a concise summary of the facts relevant to the issues on the application, with such references to the transcript of evidence by page and line, or paragraph, as the case may be, as may be necessary,
(c) Part III, entitled “Issues and the Law”, which shall contain a statement of each issue raised, immediately followed by a concise statement of the law and any authorities relating to that issue,
(d) Part IV, entitled “Order Requested”, which shall contain a statement of the order that the court will be asked to make, and
(e) a schedule, entitled “Authorities to be Cited”, which shall contain a list of the authorities (with citations) to which reference was made in Part III and in the order in which they there appear
in paragraphs numbered consecutively throughout the factum.
RESPONDENT’S FACTUM
Filing and Service
6.08 (1) Every respondent shall prepare a “Respondent’s Factum” and shall file in the court office for the place where the application is to be heard one copy with proof of service thereof on all other parties and persons who have been granted the right to be heard in the proceedings.
Time for Delivery
(2) The respondent’s factum shall be delivered to the court office for the place where the application is to be heard within 7 days after service of the applicant’s factum, with proof of service on all other parties and persons who have been granted the right to be heard in the proceedings, and not less than 3 days before the date on which the application is scheduled to be heard.
Contents
(3) The respondent’s factum shall consist of
(a) Part I, entitled “Respondent’s Statement as to Facts”, which shall contain a statement of the facts in Part II of the applicant’sfactum that the respondent accepts as correct or substantially correct and those facts with which the respondent disagrees and a concise summary of any additional facts relied on, with such reference to the transcripts of the evidence by page and line or paragraph, as the case may be, as is necessary,
(b) Part II, entitled “Response to Applicant’s Issues”, which shall contain the position of the respondent with respect to each issue raised by the applicant, immediately followed by a concise statement of the law and the authorities relating to that issue,
(c) Part III, entitled “Additional Issues”, which shall contain a statement of any additional issues raised by the respondent, immediately followed by a concise statement of the law and the authorities relating to that issue,
(d) Part IV, entitled “Order Requested”, which shall contain a statement of the order that the court will be asked to make. and
(e) a schedule, entitled “Authorities to be Cited”, which shall contain a list of the authorities (with citations) referred to in the order in which they appear in Parts II and III
in paragraphs numbered consecutively throughout the factum.
INTERVENOR’S FACTUM
Filing and Service
6.09 (1) Every intervenor shall prepare an “Intervenor’s Factum” and shall file in the court office for the place where the application is to be heard one copy with proof of service thereof on all other parties and persons who have been granted the right to be heard in the proceedings.
Time for Delivery
(2) The intervenor’s factum shall be delivered to the court office for the place where the application is to be heard within 3 days after service of the respondent’s factum, with proof of service on all other parties and persons who have been granted the right to be heard in the proceedings, and not less than 3 days before the date on which the application is scheduled to be heard.
Contents
(3) The intervenor’s factum shall consist of
(a) Part I, entitled “Intervenor’s Statement as to Facts”, which shall contain a statement of the facts in Part II of the applicant’s factum that the intervenor accepts as correct or substantially correct and those facts with which the intervenor disagrees and a concise summary of any additional facts relied on, with such reference to the transcripts of evidence by page and line or paragraph, as the case may be, as is necessary
(b) Part II, entitled “Response to Applicant’s Issues”, which shall contain the position of the intervenor with respect to each issue raised by the applicant, immediately followed by a concise statement of the law and the authorities relating to that issue
(c) Part III, entitled “Additional Issues”, which shall contain a statement of any additional issues raised by the intervenor, immediately followed by a concise statement of the law and the authorities relating to that issue
(d) Part IV, entitled “Order Requested”, which shall contain a statement of the order that the court will be asked to make, and
(e) a schedule, entitled “Authorities to be Cited”, which shall contain a list of the authorities (with citations) referred to in the order in which they appear in Parts II and III
in paragraphs numbered consecutively throughout the factum.
THE HEARING OF APPLICATIONS
Place of Hearing
6.10 An application shall be heard and determined by a judge of the court for the court location in the county, district or region in which the proceeding is being or is to be held.
EVIDENCE ON APPLICATIONS - EVIDENCE BY AFFIDAVIT
General Rule
6.11 (1) Evidence on an application may be given by affidavit in Form 3 and in accordance with rule 4.06, unless the Code, or other applicable statute provides or a judge of the court orders otherwise in accordance with rule 2.02.
Service and Filing
(2) Where an application is made on notice, the affidavits on which the application is founded shall be served with the Notice of Application and shall be filed with proof of service for the court office for the place where the motion or application is to be heard, in accordance with clause 6.05(1)(b).
(3) All affidavits to be used at the hearing in opposition to an application or in reply shall be served and filed with proof of service in the court office for the place where the application is to be heard, in accordance with subrule 6.05(3).
Cross-Examination on Affidavit
(4) Subject to the Code or any other applicable statute or rule of law, an affiant may be cross-examined on his or her affidavit either at the office of a special examiner in sufficient time in advance of the return date of the application to permit a transcript of the cross-examination to be filed with the clerk prior to the return date of the application, or before the judge presiding on the hearing of the application.
EVIDENCE BY EXAMINATION OF WITNESSES
6.12 Subject to the Code or any other applicable statute or rule of law, a witness may be examined or cross-examined upon the hearing of an application with leave of the presiding judge, and nothing in these rules shall be construed to affect the authority of a judge hearing an application to receive evidence through the examination of witnesses.
USE OF AGREED STATEMENT OF FACTS
6.13 A judge, before or upon the hearing of the application, may dispense with the filing of any transcript(s) or affidavit(s) required in these rules and act upon a statement of facts agreed upon by the prosecutor and the accused person or his or her counsel of record.
ABANDONMENT OF APPLICATIONS
Notice
6.14 (1) Where an applicant desires to abandon the application, the applicant shall serve, in any manner provided by rule 5, a Notice of Abandonment in Form 7, signed by counsel of record in the application, or by the applicant in which case the signature shall be verified by affidavit, solemn declaration or witnessed by counsel or an officer of the institution in which the applicant is confined.
Dismissal as Abandoned
(2) A judge of the court in chambers may thereupon dismiss the application as an abandoned application, without the attendance of counsel of record or the applicant.
Dismissal for Failure to Appear
(3) An applicant who fails to appear at the hearing of an application shall be deemed to have wholly abandoned the application, unless the court orders otherwise in accordance with rule 2.02.
RULE 7 – PRACTICE DIRECTIONS
POWER TO ISSUE PRACTICE DIRECTIONS
7.01 The Chief Justice or Regional Senior Justice of the Ontario Court of Justice may from time to time issue practice directions not inconsistent with these rules, in relation to the supervision and direction of the sittings and the assignment of judicial duties.
(The next rule is Rule 20)
PART II
PRE-TRIAL PROCEEDINGS
RULE 20 – RELEASE OF EXHIBITS FOR SCIENTIFIC TESTING
APPLICATION OF THE RULE
20.01 This rule applies to applications under subsection 605(1) of theCode on behalf of the accused or the prosecutor for the release of an exhibit for the purpose of a scientific or other test or examination.
TO WHOM APPLICATION MADE
20.02 Applications under rule 20.01 shall be made to a judge of the court for the court location in the county, district or region in which the proceeding is being held or is to be held.
SERVICE OF NOTICE
General Rule
20.03 (1) Service of the Notice of Application under this rule and the supporting materials required by rule 20.04 shall be made on the prosecutor or accused, as the case may be, in accordance with rule 5, at least two clear days prior to the date fixed for the hearing of the application.
Filing with Proof of Service
(2) The Notice of Application and supporting materials, together with proof of service thereof, shall be filed in the court office for the place where the application is to be heard, at least one day before the date fixed for the hearing of the application.
MATERIAL FOR USE ON APPLICATION
Materials to be Filed
20.04 (1) The Notice of Application in Form 1 under this rule shall be accompanied by
(a) an affidavit by or on behalf of the applicant deposing to the matters described in subrule (2); and
(b) an affidavit of the person or an authorized representative of the agency whom it is proposed shall conduct the test or examination deposing to the matters described in subrule (3).
Affidavit of or on Behalf of the Applicant
(2) The affidavit of or on behalf of the applicant required by clause (1)(a) shall contain
(a) particulars of the charge in respect of which the application is made, including a statement of the date upon which the proceedings are scheduled to or did commence;
(b) particulars of the exhibit which it is sought to have ordered released for the purpose of a scientific or other test or examination;
(c) a description of the relevance of the exhibit and the proposed examination or testing, to the issues raised in the proceedings;
(d) a statement of the manner in which and steps by which the applicant will endeavour to ensure the safeguarding of the exhibit and its preservation for use in the proceedings;
(e) where the application has not been brought until at or after the commencement of the proceedings, a statement of the reasons why it was not earlier brought and whether, if granted, the testing or examination procedure will disrupt or delay the proceedings;
(f) a statement whether any issue is being or will be taken by the applicant to the continuity of the exhibits being tested or examined, and whether prior or subsequent to such examination or testing as is proposed; and
(g) a statement whether, within a reasonable time after the completion of such testing or examination, the applicant shall advise the respondent whether it is proposed to adduce the results thereof in the proceedings.
Affidavit of or on Behalf of Examiner
(3) The affidavit of the person or an authorized representative of the agency whom it is proposed shall conduct the test or examination, required under clause (1)(b), shall contain
(a) a statement of the capacity in which the deponent makes the affidavit, whether as examiner or authorized representative of the examining agency;
(b) where the affiant is an authorized representative of the examining agency, a statement of the scope of his or her authority and the basis and extent of his or her knowledge of the testing or examination techniques to be employed in the proposed examination;
(c) a detailed description of the nature, purpose, extent and duration of the testing or examination proposed including, where practicable, the scientific techniques, procedures and equipment to be used;
(d) a description of the location or facility in which the testing or examination is to be conducted;
(e) a reasonable estimate of the length of time required to complete the test or examination proposed;
(f) a statement of whether the examiner, testing agency or applicant will permit attendance by duly qualified representatives of the respondent at or during the examination or testing or furnish the results thereof to such persons;
(g) where the examiner or testing agency is not amenable to the process of the court, a statement whether such persons who will examine or test the exhibit will attend to give evidence in the proceedings or upon commission, if ordered; and
(h) a description of the steps and procedures to be taken to ensure the safeguarding of the exhibit and its preservation, in an unaltered state, for use in the proceedings.
Factum May be Required
(4) A judge may require that factums complying with rules 6.06 to 6.08 be filed on applications under this rule.
CONSENT IN WRITING
20.05 The respondent may consent in writing to the order sought, upon terms included in a draft order in Form 8, and a judge may grant such order without the attendance of counsel.
ORDER DIRECTING RELEASE OF EXHIBITS
Form of Order
20.06 (1) An order directing the release of exhibits for the purpose of a scientific test or other examination under subsection 605(1) of the Codeand this order shall be in Form 8.
Sufficiency of Order
(2) An order in Form 8 shall be sufficient authority for the person with custody of the exhibit to be tested or examined to release the exhibit for such purpose and thereafter to regain custody thereof in accordance with its terms.
RULE 21 – APPLICATIONS TO CHANGE THE VENUE OF TRIAL
APPLICATION OF THE RULE
21.01 This rule applies to applications under subsection 599(1) of theCode on behalf of an accused or the prosecutor to change the venue of trial.
TO WHOM APPLICATION MADE
21.02 Applications under rule 21.01 shall be made to a judge of the court for the court location in the county, district or region in which the trial is being held or is to be held.
CONTENTS OF NOTICE
21.03 The Notice of Application in Form 1 shall include a statement of the territorial division in which it is proposed that the trial proceedings be held.
SERVICE OF NOTICE
General Rule
21.04 (1) Service of the Notice of Application under rule 21.03 and the supporting materials required by rule 21.05 shall be made upon the prosecutor or accused, as the case may be, in accordance with rule 5, at least 15 days before the date fixed for the hearing of the application, which shall not be less than 10 days prior to the date fixed for trial in the territorial division where the trial is scheduled to be held.
Filing with Proof of Service
(2) Notice of Application and supporting materials, together with proof of service thereof, shall be filed in the court office for the place where the application is to be heard, at least 10 days before the date fixed for the hearing of the application.
MATERIALS FOR USE ON APPLICATION
Materials to be Filed
21.05 (1) The Notice of Application in Form 1 under rule 21.03 shall be accompanied by
(a) an affidavit by or on behalf of the applicant, deposing to the matters described in subrule (2); and
(b) a draft order in Form 9 in which is proposed an alternative place and, where applicable, time of trial.
Affidavit of or on Behalf of the Applicant
(2) The affidavit of or on behalf of the applicant required by clause (1)(a) shall contain
(a) particulars of the charge in respect of which the application is made, including a statement of the date upon which trial proceedings are scheduled to commence;
(b) where the basis of the application under paragraph 599(1)(a) of the Code is prejudicial news media reporting of the matter to be tried, a full statement respecting the time, place, date and name of the relevant account or report, together with a description of the extent of its circulation or coverage in the county, district or region;
(c) as exhibits, legible copies or transcripts of the media accounts which constitute the basis of the application;
(d) a statement of the reasons why the trial should be held in the territorial division proposed, rather than in some other territorial division different than that in which the offence would otherwise be tried; and
(e) a statement of the date or dates available for trial in the territorial division proposed.
Factum May Be Required
(3) A judge may require that factums complying with rules 6.06 to 6.08 be filed on applications under this rule.
CONSENT IN WRITING
21.06 The respondent may consent in writing to the order sought upon terms included in the draft order in Form 9 filed under clause 21.05(1)(b) and a judge, where satisfied that the requirements of subsection 599(1) of the Code have been met, may grant the order on such terms without the attendance of counsel.
RULE 22 – APPLICATIONS TO PROCURE ATTENDANCE OF
PRISONERS
APPLICATION OF THE RULE
22.01 This rule applies to applications under subsection 527(2) of theCode to procure the attendance of a person who is confined in a prison in Ontario and under subsection 527(7) of the Code to transfer a prisoner or a person in the custody of a peace officer in Ontario to the custody of a peace officer to assist a peace officer acting in the execution of his or her duties.
TO WHOM APPLICATION MADE
Applications for Attendance at Court Proceedings
22.02 (1) Applications under rule 22.01 made pursuant to subsection 527(2) of the Code shall be made to a judge of the court for the court location in the county, district or region in which the proceedings to which the application relates are scheduled to take place, as soon as is reasonably practicable and sufficiently in advance of the required attendance to ensure that no adjournment of the proceedings will be required for such purpose.
Applications for Transfer from Custody
(2) Applications under rule 22.01 made pursuant to subsection 527(7) of the Code shall be made to a judge of the court in the county, district or region to which the prisoner or the person in the custody of a peace officer is to be transferred or in which the prisoner is incarcerated or in which the person is in the custody of a peace officer.
FILING OF NOTICE
22.03 The notice of application and supporting materials shall be filed in the court office for the place where the application is to be determined, as soon as is reasonably practicable, before the date on which the application is to be determined.
MATERIALS FOR USE ON APPLICATION
Materials to be Filed
22.04 (1) The Notice of Application in Form 1 under this rule shall also be accompanied by
(a) where the application is made under subsection 527(2) of the Code, an affidavit by or on behalf of the applicant deposing to the matters described in subrule (2);
(b) where the application is made under subsection 527(7) of the Code, an affidavit by or on behalf of the prosecutor setting out the matters described in subrule (3);
(c) where the application is made under subsection 527(7) of the Code, the written consent of the prisoner or of the person in the custody of a peace officer to the order proposed;
(d) a draft order in Form 10(a) or 10(b), as the case may be; and
(e) a copy of any other material in the court file that is necessary for the determination of the application.
Affidavit of or on Behalf of the Applicant
(2) The affidavit of or on behalf of the applicant required by clause (1)(a) for an application under subsection 527(2) of the Code shall contain
(a) particulars of the charge in respect of which the application is made, including a statement of the date upon which the proceedings in which the prisoner’s attendance is required are scheduled to commence or resume, as the case may be;
(b) particulars of the date upon or period within which, as well as the locations at which, the attendance of the prisoner will or may be required;
(c) particulars relating to the detention of the prisoner; and
(d) a statement of the reasons why the prisoner’s attendance is required.
(3) The affidavit of or on behalf of the applicant required by clause (1)(b) for an application under subsection 527(7) of the Code shall contain
(a) a description of the status of the peace officer to whose custody it is sought to transfer the prisoner or person in the custody of a peace officer;
(b) a statement or description of the purpose for which the transfer is sought;
(c) particulars relating to the detention of the prisoner or of the person in the custody of a peace officer;
(d) a statement or description of the nature of the assistance which it is reasonably anticipated the prisoner or person in the custody of a peace officer will provide, if transferred;
(e) a statement whether the assistance reasonably anticipated is available from other sources;
(f) a statement whether notice of the application has been given to the solicitor of record of the prisoner or of the person in the custody of a peace officer;
(g) as an exhibit, the written consent of the prisoner or of the person in the custody of a peace officer to the proposed transfer;
(h) a description of the procedures to be followed to ensure the custody and security of the prisoner or of the person in the custody of a peace officer;
(i) a statement of particulars of the period for which the transfer is required; and
(j) a general description of the locations at which the attendance of the prisoner or of the person in the custody of a peace officer will be required.
Application Record and Factum
(4) Unless otherwise ordered by the judge before whom an application referred to in this rule, made under subsection 527(2) or (7) of the Codeis returnable, no application record or factum shall be required.
Attendance Not Required
(5) Unless otherwise ordered by the judge before whom an application under this rule, made under subsection 527(2) or (7) of the Code is returnable, the order sought may be given ex parte and without the attendance of the counsel of record for the applicant.
RULE 23 – APPLICATIONS TO TAKE EVIDENCE ON COMMISSION
APPLICATION OF THE RULE
23.01 This rule applies to applications under section 709 of the Code on behalf of an accused or the prosecutor for an order appointing a commissioner to take the evidence of a witness.
TO WHOM APPLICATION MADE
23.02 Applications under rule 23.01 shall be made to a judge of the court for the court location in the county, district or region in which the preliminary inquiry or trial is being held or is to be held, either before or as soon as is reasonably practicable after the date has been fixed for the preliminary inquiry or trial.
CONTENTS OF NOTICE
23.03 A Notice of Application in Form 1 under rule 23.01 shall include a statement whether the presence of the accused is required upon the taking of the evidence and whether the proceedings on commission are to be videotaped.
SERVICE OF NOTICE
General Rule
23.04 Service of the Notice of Application under rule 23.03 and the supporting materials required by rule 23.05 shall be made upon the prosecutor or accused, as the case may be, at least 30 days before the date fixed for the hearing of the application and not less than 60 days before the date fixed for preliminary inquiry or trial.
MATERIALS FOR USE ON APPLICATION
Materials to be Filed
23.05 (1) The Notice of Application in Form 1 under rule 23.03 shall be accompanied by
(a) an affidavit by or on behalf of the applicant and deposing to the matters described in subrule (2);
(b) where the application is made under subparagraph 709(a)(i) of the Code, the affidavit of a registered medical practitioner describing the nature and extent of the illness and the disability arising therefrom or, where the prosecutor and accused consent, the report in writing of such practitioner; and
(c) a draft order which, in cases where the person is to be examined outside Ontario, shall provide for the issuing of a Commission in Form 11 authorizing the taking of evidence before a named commissioner and a letter of request directed to the judicial authorities of the jurisdiction in which the witness is to be found, requesting the assistance of such process as is necessary to compel the witness to attend and be examined before the named commissioner.
Affidavit by or on Behalf of the Applicant
(2) The affidavit by or on behalf of the applicant required by clause (1)(a) shall contain
(a) particulars of the charge in respect of which the application is made, including a statement of the date upon which the preliminary inquiry or trial is scheduled to commence and its anticipated length;
(b) a statement of all material facts relied upon to justify the belief that an order should be given including a statement
(i) whether the requested jurisdiction will or is likely to respond favourably to a request for judicial assistance,
(ii) whether the manner of response, if favourable, is compatible with the manner in which evidence is taken in criminal proceedings in Canada,
(iii) whether the circumstances of the witness’ residence out of Canada render return to Canada for the preliminary inquiry or trial likely or unlikely, thereby affecting the necessity for the taking of evidence on commission,
(iv) whether the witness has relevant and material evidence to give, receivable in accordance with the rules of evidence applicable in the Canadian proceedings,
(v) whether the witness is willing to attend to give evidence on commission and, if not, the means whereby his or her attendance may be compelled or otherwise ensured,
(vi) whether there be unfair prejudice to the party opposite by the order of a commission,
(vii) whether there will be any serious disruption of the preliminary inquiry or trial by the taking of such evidence, and
(viii) whether the trier of fact will be disadvantaged, to the prejudice of the parties or either of them, by being unable to observe the demeanour of the witnesses;
(c) if known, a statement of the time and place at which the proposed examination is to be conducted;
(d) if known, a statement of the identity of the proposed commissioner and of his or her consent to act in that capacity;
(e) a description of the manner in which it is proposed to conduct and record the examination, including whether an interpreter will be required and whether it is proposed that the proceedings be videotaped; and
(f) a statement whether the presence of the accused is sought, permitted or required and, where applicable, what arrangements, if any, are proposed in respect of his or her attendance or detention in custody.
Factum May be Required
(3) A judge may require that factums complying with rules 6.06 to 6.08 be filed on applications under this rule.
CONSENT IN WRITING
23.06 The respondent may consent in writing to the order sought upon terms included in a draft order in Form 11 filed and a judge, satisfied that the relief sought by the applicant should be granted, may grant the order on such terms without the attendance of counsel.
ORDER FOR EXAMINATION
Contents of Order
23.07 (1) Where an order is made that the evidence of a witness may be taken by a commissioner, the judge granting the order may determine
(a) the time and place of the examination;
(b) the minimum notice period required;
(c) the name of the commissioner;
(d) the witness fee, if any, to be paid to the witness whose evidence is to be taken by the commissioner; and
(e) any other matter respecting the holding of the examination including the presence of the accused and his or her counsel upon such commission and payment of those expenses of the commission which are to be borne by the applicant.
Commission and Letter of Request
(2) Where the witness is to be examined outside Ontario, the order under subrule (1) shall, upon the request of the applicant, provide for the issuing of
(a) a commission in Form 11 authorizing the taking of evidence before a named commissioner; and
(b) a letter of request in Form 12 directed to the judicial authorities of the jurisdiction in which the proposed witness is to be found, requesting the issuing of such process as is necessary to compel the witness to attend and be examined before the commissioner,
and the order shall be in Form 13.
(3) The commission and letter of request shall be prepared and issued by the clerk.
Duties of Commissioner
(4) A commissioner shall, to the extent that it is possible to do so, conduct the examination in the form of oral questions and answers in accordance with these rules, the law of evidence applicable to criminal trials and the terms of the commission, unless some other form of examination is required by the order or the law of the place where the examination is conducted.
(5) As soon as the transcript of the examination is prepared, the commissioner shall
(a) return the commission, together with the original transcript and exhibits, to the clerk who issued it;
(b) keep a copy of the transcript and, where practicable, the exhibits; and
(c) notify the parties who appeared at the examination that the transcript is complete and has been returned to the clerk who issued the commission.
Applicant to Serve Transcript
(6) The clerk shall send the transcript to counsel of record for the applicant or to the applicant, as the case may be, who shall forthwith serve every other party with the transcript free of charge.
WITNESS TO BE EXAMINED UNDER OATH OR UPON AFFIRMATION
Examination in Ontario
23.08 (1) Before being examined, the witness shall take an oath or make an affirmation or, where the conditions of subsection 16(3) of theCanada Evidence Act have been met, make a promise to tell the truth, and where the examination is conducted in Ontario, the oath or affirmation shall be administered by the commissioner or by another person authorized to administer oaths in Ontario, or where the conditions of subsection 16(3) of the Canada Evidence Act have been met, the promise to tell the truth shall be made to that person.
Examination Outside Ontario
(2) Where the examination is conducted outside Ontario, the oath or affirmation may be administered by, or the promise to tell the truth made to the person before whom the examination is conducted, a person authorized to administer oaths in Ontario or a person authorized to take affidavits or administer oaths or affirmations in the jurisdiction where the examination is conducted.
INTERPRETER
General Rule
23.09 (1) Where the witness does not understand the language or languages in which the examination is to be conducted or is deaf or mute, a competent and independent interpreter shall, before the witness is examined, take an oath or make an affirmation to interpret accurately the administration of the oath or affirmation and the questions to and answers of the witness.
Supply of Interpreter
(2) Where an interpreter is required by subrule (1) for the examination of a witness, unless the interpretation is from English to French or from French to English in which case the interpreter shall be provided by the Attorney General, the applicant shall provide an interpreter satisfactory to the parties.
PRODUCTION OF DOCUMENTS
General Requirement
23.10 (1) The witness shall bring to the examination and produce for inspection all documents and things in his or her possession, control or power that are not privileged and that the process compelling attendance requires the person to bring.
Process May Require Documents and Things
(2) Unless the commissioner orders otherwise in the interests of justice, the process which compels the attendance of a witness may require the witness to bring to the examination and produce for inspection,
(a) all documents and things relating to any matter in issue in the proceeding that are in his or her possession, control or power and are not privileged; or
(b) such documents or things described in clause (a) as are specified in the process compelling attendance.
Duty to Produce Other Documents
(3) Where a witness, on examination upon a commission, admits that he or she has possession or control of or power over any other document that relates to a matter in issue in the proceeding and is not privileged, the witness shall produce it for inspection by the examining party forthwith, if the person has the document at the examination, and if not, within two days thereafter, unless the commissioner orders otherwise in the interests of justice.
THE COURSE OF EXAMINATION
Examination-In-Chief
23.11 (1) Counsel of record for the applicant shall examine the witness whose evidence is to be taken upon commission in-chief, in accordance with the rules of evidence which would apply at trial.
Cross-Examination
(2) After examination-in-chief by counsel of record for the applicant has been concluded, counsel of record for the respondent may cross-examine the witness in accordance with the rules of evidence which would apply at trial.
Re-Examination
(3) After cross-examination has been completed, counsel of record for the applicant may re-examine the witness in accordance with the rules of evidence which would apply at trial.
OBJECTIONS AND RULINGS
Objections
23.12 (1) Where objection is taken to a question, the objector shall state briefly the reason for the objection, and the question and the brief statement concerning the objection shall be recorded.
Rulings on Answers Under Objection
(2) A question to which objection is taken may be answered with the objector’s consent, and where the question is answered, a ruling shall be obtained from the preliminary inquiry or trial judge before the evidence is used at preliminary inquiry or trial.
Rulings on Answers Not Given
(3) A ruling on the propriety of a question to which objection is made and an answer not given may be obtained from the preliminary inquiry or trial judge.
RULINGS BY COMMISSIONER
23.13 A commissioner who is not the preliminary inquiry or trial judge may make rulings with respect to the conduct of an examination, other than a ruling on the propriety of a question, but the ruling of a commissioner who is not the preliminary inquiry or trial judge is subject to review by the preliminary inquiry or trial judge.
EVIDENCE TAKEN TO BE RECORDED
23.14 All evidence taken by a commissioner shall be recorded in its entirety in question and answer form in a manner that permits the preparation of a typewritten transcript of the examination, unless the court orders otherwise in accordance with rule 2.02 or the parties agree otherwise.
TYPEWRITTEN TRANSCRIPT
Preparation of Transcript
23.15 (1) Where a party so requests, the person who recorded evidence taken upon commission shall have a typewritten transcript of the evidence prepared and completed within four weeks after receipt of the request.
Certification
(2) The transcript shall be certified as correct by the person who recorded the evidence taken, but need not be read to or signed by the witness.
Delivery to Other Parties and Court
(3) As soon as the transcript is prepared, the person who recorded the evidence taken on commission shall send one copy to each party who has ordered and paid for a transcript and, if a party so requests, shall provide an additional copy for the use of the court.
USE OF EVIDENCE AT PRELIMINARY INQUIRY OR TRIAL
23.16 The judge presiding at the preliminary inquiry or trial at which the evidence taken upon commission is tendered for admission shall determine the extent to which and manner in which, if at all, the evidence shall be received in the proceedings.
VIDEOTAPING OR OTHER RECORDING OF EVIDENCE ON COMMISSION
General Rule
23.17 (1) On consent of the parties or by order of the court, evidence taken on commission may be recorded by videotape or other similar means and the tape or other recording may be filed for the use of the court along with the transcript.
Application of Rule 23.16
(2) Rule 23.16 applies, with necessary modifications, to a tape or other recording made under subrule (1).
RULE 24 – APPLICATIONS FOR REMOVAL AS COUNSEL OF RECORD
APPLICATION OF THE RULE
24.01 This rule applies to applications by counsel of record for an accused to be removed as counsel of record, and to applications by the prosecutor to have counsel of record for an accused removed as counsel of record.
TO WHOM APPLICATION MADE
24.02 Applications under rule 24.01 shall be made to a judge of the court for the court location in the county, district or region in which the proceedings to which the application relates are scheduled to take place, as soon as is reasonably practicable and sufficiently in advance of the scheduled date of the preliminary inquiry or trial to ensure that no adjournment of the proceedings will be required for such purpose, or, where the matter arises at the preliminary inquiry or trial, to the presiding judge.
SERVICE OF NOTICE
General Rule
24.03 (1) Service of the Notice of Application under this rule and the supporting materials required by rule 24.05 shall be made upon the prosecutor and accused, at least 15 days before the date fixed for the hearing of the application, which shall not be less than 10 days prior to the date fixed for the preliminary inquiry or trial.
Manner of Service
(2) Service of the Notice of Application and supporting materials shall be made in accordance with rule 5, and where the application is made by counsel of record for the accused, upon the accused by mailing a copy to his or her last known address.
Filing with Proof of Service
(3) Notice of Application and supporting materials, together with proof of service thereof, shall be filed in the court office for the place where the application is to be heard, at least 10 days before the date fixed for the hearing of the application.
MATERIALS FOR USE ON APPLICATION
Materials to be Filed
24.04 (1) The Notice of Application in Form 1 under this rule shall include, whether by affidavit by or on behalf of the applicant, or otherwise, those matters described in subrule (2).
Affidavit by or on Behalf of the Applicant
(2) The affidavit by or on behalf of the applicant required by subrule (1) shall contain
(a) particulars of the charge in respect of which the application is made, including a statement of the date upon which the proceedings are scheduled to commence and their anticipated length;
(b) particulars of any prior applications, whether on behalf of the accused or the prosecutor, to have counsel of record for the accused removed as counsel of record, including, where available, transcripts of proceedings taken upon such applications;
(c) where the application is made by counsel of record for an accused or on behalf of an accused, a full statement of all facts material to a determination of the application, including without disclosing any solicitor client communication in respect of which solicitor client privilege has not been waived, a statement of the reasons why the order sought should be given;
(d) where the application is made by or on behalf of the prosecutor, a full statement of all facts material to a determination of the application, including a statement of the reasons why the order sought should be given;
(e) a statement whether an adjournment of the proceedings is likely or will be required to enable the accused to retain and instruct a new counsel of record to proceed to preliminary inquiry or trial and, if so, when it is proposed that the proceedings shall commence; and
(f) where applicable, a statement of the identity of the new counsel of record and his or her undertaking to proceed to preliminary inquiry or trial or other disposition on the date specified under clause (e).
Factum May be Required
(3) A judge may require that factums complying with rules 6.06 to 6.08 be filed on applications under this rule.
CONSENT IN WRITING
24.05 The respondent or accused may consent in writing to the order sought upon terms included in a draft order filed and a judge, satisfied that the relief sought by the applicant should be granted, may grant the order on such terms without the attendance of counsel.
RULE 25 – APPLICATIONS FOR ADJOURNMENT
APPLICATION OF THE RULE
25.01 This rule applies to applications on behalf of an accused or the prosecutor for an order adjourning a proceeding, after a date has been fixed for the proceeding, but prior to commencement of the proceeding.
TO WHOM APPLICATION MADE
25.02 Applications under rule 25.01 shall be made to a judge of the court for the court location in the county, district or region in which the proceeding is to be held.
SERVICE OF NOTICE
General Rule
25.03 (1) Service of the Notice of Application under this rule and the supporting materials required by rule 25.04 shall be made upon the prosecutor or accused, and all other parties to the proceedings, as the case may be, in accordance with rule 5, at least 15 days before the date fixed for the hearing of the application, which shall not be less than 10 days prior to the date fixed for the proceeding.
Filing with Proof of Service
(2) Notice of Application and supporting materials, together with proof of service thereof, shall be filed in the court office for the place where the application is to be heard, at least 10 days before the date fixed for the hearing of the application.
MATERIALS FOR USE ON APPLICATION
Materials to be Filed
25.04 (1) The Notice of Application in Form 1 under this rule shall include, whether by affidavit by or on behalf of the applicant, or otherwise, those matters described in subrule (2).
Affidavit by or on Behalf of the Applicant
(2) The affidavit by or on behalf of the applicant required by subrule (1) shall contain
(a) particulars of the information in which is contained the charge upon which the order adjourning the date upon which the proceeding is scheduled to commence is sought;
(b) particulars of any prior applications, whether on behalf of the accused or the prosecutor, to have the proceeding adjourned from a date fixed for hearing to a subsequent date, including, where available, transcripts of proceedings taken upon such applications;
(c) a full statement of all facts material to a determination of the application, without disclosing any solicitor client communications in respect of which solicitor client privilege has not been waived; and
(d) a statement of the date or dates to which it is proposed to adjourn the proceeding.
Application Record and Factum Not Required
(3) No application record or factum is required on applications under this rule.
CONSENT IN WRITING
25.05 The respondent may consent in writing to the order sought upon terms included in a draft order filed and a judge, satisfied that the relief sought by the applicant should be granted, may grant the order on such terms without the attendance of counsel.
RULE 26 – CONSTITUTIONAL ISSUES
APPLICATION OF THE RULE
26.01 This rule applies to applications in criminal proceedings
(a) to declare unconstitutional and of no force and effect, in whole or in part, any enactment of the Parliament of Canada,
(b) to declare unconstitutional and of no force and effect, in whole or in part, any rule or principle of law applicable to criminal proceedings, whether on account of subsection 8(2) or (3) of the Code or otherwise, and
(c) to stay proceedings against an accused, in whole or in part, or for any other remedy under subsection 24(1) of the Charter or subsection 52(1) of the Constitution Act, 1982
on account of an infringement or denial of any right or freedom guaranteed under the Charter or otherwise.
TO WHOM APPLICATION MADE
26.02 Applications under this rule shall be made to a judge of the court for the court location in the county, district or region in which the proceeding is being held or is to be held.
CONTENTS OF NOTICE
26.03 The Notice of Application and constitutional issue in Form 4 shall state
(a) the place and date of hearing as determined in accordance with rules 26.02 and 26.04;
(b) the precise relief sought upon the application;
(c) the grounds to be argued, including a concise statement of the constitutional issue to be raised, a statement of the constitutional principles to be argued and a reference to any statutory provision or rule upon which reliance will be placed;
(d) the documentary, affidavit and other evidence to be used at the hearing of the application; and
(e) whether an order is required abridging or extending the time for service or filing of the Notice of Application or supporting materials required under rule 6.05.
FILING AND SERVING OF NOTICE
General Rule
26.04 (1) Service of the Notice of Application and constitutional issue and in accordance with rule 26.03, and of the supporting materials required by rule 26.05, shall be made upon the prosecutor and all other parties to the proceedings, as the case may be, not less than 15 days before the date fixed for the hearing of the application or, where the application is to be made at trial before the trial judge, not less than 15 days before the date on which the proceeding is scheduled to commence.
Manner of Service
(2) Service of the Notice of Application and constitutional issue and supporting materials under clause 26.01(a) or (b), shall be made in accordance with rule 5, and upon
(a) the Public Law Division, Constitutional Law Branch of the Ministry of the Attorney General of Ontario;
(b) the regional office of the Attorney General of Canada at Toronto or the office of the Attorney General of Canada at Ottawa; and
(c) the office of the prosecutor having carriage of the proceedings.
(3) Where the application is made under clause 26.01(c) at trial before the trial judge, service of the Notice of Application and constitutional issue and supporting materials shall be made, in accordance with rule 5, upon
(a) the office of the prosecutor having carriage of the proceedings; and
(b) such other person(s) and upon such terms as the trial judge may direct.
Filing with Proof of Service
(4) Notice of Application and constitutional issue and supporting material, together with proof of service thereof, shall be filed in the court office for the place where the application is to be heard, at least 10 days before the date fixed for the hearing of the application.
MATERIALS FOR USE ON APPLICATION
Materials to be Filed
26.05 (1) In addition to any other materials that may be required in the proceedings in which the constitutional issue is raised, a Notice of Application and constitutional issue under rule 26.03 shall be accompanied by
(a) a copy of the information to which the constitutional issue raised in the Notice of Application relates;
(b) a transcript of any proceedings earlier taken which are material to a determination of the constitutional issue raised in the Notice of Application;
(c) where necessary to complete the record, an affidavit by or on behalf of the applicant deposing to the matters described in subrule (2); and
(d) a copy of any other material in the court file that is necessary for the hearing and determination of the constitutional issue raised in the Notice of Application.
Affidavit by or on Behalf of the Applicant
(2) The affidavit by or on behalf of the applicant described in clause (1)(c) shall include
(a) a description of the affiant’s status and the basis of his or her knowledge of the matters deposed;
(b) a statement of the particulars of the charge to which the application relates including, where the application alleges a breach of paragraph 11(b) of the Charter, a full statement of the history of the proceedings against the applicant prior to the date scheduled for trial; and
(c) a statement of the facts material to a just determination of the constitutional issue which are not disclosed in any other materials filed in support of the application.
Respondent’s Documentary, Affidavit or Other Evidence
(3) Where the respondent seeks to rely on material that is not required to be filed under subrule (1) or (2), the respondent shall file documentary, affidavit or other material upon which reliance shall be placed no later than five days before the hearing of the application.
Applicant’s Application Record and Factum
(4) The applicant shall prepare an application record and factum in compliance with subrules 6.05(1) and (2) and rules 6.06 and 6.07.
Respondent’s Application Record and Factum
(5) The respondent shall prepare an application record and factum in compliance with subrules 6.05(3), 6.06(2) and (3) and rule 6.08.
Further Application Record and Factum
(6) A judge, before the hearing of the application, may give directions concerning the filing of further application records and factums.
INTERVENTIONS
26.06 Any person interested in a proceeding between other parties may, by leave of the judge presiding over that proceeding, intervene therein upon such terms and conditions and with such rights and privileges as the judge may determine.
RULE 27 – PRE-HEARING CONFERENCES
APPLICATION OF THE RULE
27.01 A pre-hearing conference in respect of a charge contained in an information shall be held by a judge of the court for the court location in the county, district or region in which the information has been sworn, at such time and date and in such place and manner as a judge of the court may direct, or at such further dates, times and places as the judge who presides at the pre-hearing conference may direct.
ATTENDANCE OF COUNSEL OF RECORD AND ACCUSED
Attendance at Conference
27.02 (1) Unless otherwise ordered by a judge in accordance with rule 2.02, the prosecutor and counsel of record for the accused, each fully briefed in respect of the issues to be discussed at the pre-hearing conference, or, in the case of an accused who is not represented by counsel of record, the accused, shall be present at the pre-hearing conference.
Availability of Accused
(2) A judge may require that an accused, represented by counsel of record, be available for consultation with counsel in respect of matters to be considered at the pre-hearing conference and that an investigating officer shall be available for consultation with the prosecutor.
Completion in Draft of Pre-Hearing Conference Report
(3) Prior to attending the Pre-Hearing Conference, the prosecutor and counsel of record for the accused shall jointly prepare in draft a Pre-Hearing Conference Report in Form 14, to be presented to the pre-hearing conference judge.
Completion of Pre-Hearing Conference Report Where Accused Not Represented by Counsel
(4) Where the accused is not represented by counsel, the prosecutor shall complete in draft the Pre-Hearing Conference Report in Form 14.
THE PRE-HEARING CONFERENCE
General Nature of Pre-Hearing Conference
27.03 (1) Unless otherwise ordered by the pre-hearing conference judge in accordance with rule 2.02, a pre-hearing conference shall be an informal meeting conducted in chambers at which a full and free discussion of the issues raised may occur without prejudice to the rights of the parties in any proceedings thereafter taking place.
Specific Inquiries to be Made
(2) Without restricting the generality of rule 27.01 or subrule (1), a pre-hearing conference judge may inquire as to
(a) the extent of disclosure made by the prosecutor and any or further requests therefor by an accused or counsel of record for an accused;
(b) the nature and particulars of any applications to be made at the outset of the proceedings including any
(i) application to contest the laying of the information or any count thereof,
(ii) application to stay or otherwise determine the proceedings prior to plea or the introduction of evidence,
(iii) application to change the venue of trial or adjourn the hearing of the proceeding,
(iv) application to challenge the sufficiency of the information, to order particulars or to amend the information or any count thereof,
(v) application to sever the trial of any count(s) or accused from the trial(s) of any other accused or count,
(vi) application concerning the special pleas ofautrefois acquit, autrefois convict or pardon, and
(vii) application to determine the fitness of an accused to stand trial;
(c) the possibility of resolution of any or all of the issues in the proceedings, including the possible disposition of any or all counts contained in the information whether by plea of guilty or otherwise;
(d) the simplification of such issues as remain to be contested at the proceedings;
(e) the possibility of obtaining admissions and agreements so as to facilitate an expeditious, fair and just determination of the proceedings;
(f) the estimated duration of the proceedings;
(g) the advisability of fixing a date for the commencement of the proceeding; and
(h) any other matter that may assist in promoting a fair, just and expeditious proceeding.
PRE-HEARING CONFERENCE REPORT
Completion of Report
27.04 (1) The pre-hearing conference judge, upon the completion of the hearing, may complete a Pre-Hearing Conference Report in Form 14, a copy of which shall be provided to the prosecutor and counsel of record for the accused, or to the accused if the accused is not represented by counsel of record, and may be provided to the trial judge, together with any materials filed by counsel of record on the pre-hearing conference relating to matters to be raised at trial.
No Disclosure
(2) Except with the express consent of the prosecutor and counsel of record for the accused, the pre-hearing conference judge shall not disclose to the judge presiding at trial any communications or discussion relating to a plea of guilty unless, whether pursuant to subsection 606(4) of the Code or otherwise, a plea of guilty will be entered at trial.
OTHER PRE-HEARING CONFERENCES
27.05 Nothing in these rules shall be construed or interpreted so as to preclude a judge of the court from conducting, with the consent of the prosecutor and counsel of record for the accused, such other informal pre-hearing conferences, in addition to the conference provided for in subsection 625.1(1) of the Code, upon such terms as the judge deems fit.
RULE 28 – APPLICATIONS FOR SEVERANCE
OF ACCUSED OR COUNTS
APPLICATION OF THE RULE
28.01 This rule applies to applications under subsection 591(3) of theCode for an order that the accused be tried separately on one or more of the counts in an information or, where there is more than one accused, that one or more of them be tried separately on one or more of the counts.
TO WHOM APPLICATION MADE
28.02 Applications under rule 28.01 shall be made to a judge of the court for the court location, assigned to preside over the trial, in the county, district or region in which the trial is to be held.
CONTENTS OF NOTICE
28.03 The Notice of Application in Form 1 shall include a statement of the manner in which it is proposed that the accused be tried separately on one or more of the counts in an information, or, where there is more than one accused, a statement of the manner in which it it is proposed that one or more of them be tried separately on one or more of the counts.
SERVICE OF NOTICE
General Rule
28.04 (1) Service of the Notice of Application under this rule and the supporting materials required by rule 28.05 shall be made upon the prosecutor and all other parties to the proceedings, as the case may be, in accordance with rule 5, at least 15 days before the date fixed for the hearing of the application, which shall not be less than 10 days prior to the date fixed for trial.
Filing with Proof of Service
(2) Notice of Application and supporting materials, together with proof of service thereof, shall be filed in the court office for the place where the application is to be heard, at least 10 days before the date fixed for the hearing of the application.
MATERIALS FOR USE ON APPLICATION
Materials to be Filed
28.05 (1) The Notice of Application in Form 1 under this rule shall include, whether by affidavit by or on behalf of the applicant, or otherwise, those matters described in subrule (2).
Affidavit by or on Behalf of the Applicant
(2) The affidavit by or on behalf of the applicant required by subrule (1) shall contain
(a) a copy of the information(s) to which the application relates;
(b) particulars of any prior applications to have the accused tried separately on one or more of the counts in an information or, where there is more than one accused, to have one or more of them tried separately on one or more of the counts, including, where available, transcripts of proceedings taken upon such applications; and
(c) a full statement of all facts material to a determination of the application without disclosing any solicitor client communications in respect of which solicitor client privilege has not been waived.
Factum May Be Required
(3) A judge may require that factums complying with rules 6.06 to 6.08 be filed on applications under this rule.
CONSENT IN WRITING
28.06 The respondent may consent in writing to the order sought upon terms included in a draft order filed and a judge, satisfied that the relief sought by the applicant should be granted, may grant the order on such terms without the attendance of counsel.
RULE 29 – APPLICATIONS FOR PARTICULARS
APPLICATION OF THE RULE
29.01 This rule applies to applications under subsection 587(1) of theCode for an order that the prosecutor furnish particulars in respect of an information or a count in an information prior to commencement of the trial.
TO WHOM APPLICATION MADE
29.02 Applications under rule 29.01 shall be made to a judge of the court for the court location in the county, district or region in which the trial is to be held.
CONTENTS OF NOTICE
29.03 The Notice of Application in Form 1 shall include a statement of the manner in which it is proposed that the information or a count in the information be particularized.
SERVICE OF NOTICE
General Rule
29.04 (1) Service of the Notice of Application under this rule and the supporting materials required by rule 29.05 shall be made upon the prosecutor and all other parties to the proceedings, as the case may be, in accordance with rule 5, at least 15 days before the date fixed for the hearing of the application, which shall not be less than 10 days prior to the date fixed for trial.
Filing with Proof of Service
(2) Notice of Application and supporting materials, together with proof of service thereof, shall be filed in the court office for the place where the application is to be heard, at least 10 days before the date fixed for the hearing of the application.
MATERIALS FOR USE ON APPLICATION
Materials to be Filed
29.05 (1) The Notice of Application in Form 1 under this rule shall include, whether by affidavit by or on behalf of the applicant, or otherwise, those matters described in subrule (2).
Affidavit by or on Behalf of the Applicant
(2) The affidavit by or on behalf of the applicant required by subrule (1) shall contain
(a) a copy of the information(s) to which the application relates;
(b) a statement of any prior applications to have the information or a count thereof particularized, including, where available, transcripts of proceedings taken upon such applications; and
(c) a full statement of all facts material to a determination of the application, including
(i) the matters disclosed by the evidence taken on any other proceedings,
(ii) the evidence expected to be taken on the trial,
(iii) the circumstances of the case, and
(iv) whether, having regard to the merits of the case, it is necessary for a fair trial that particulars be furnished.
Application Record and Factum Not Required
(3) No application record or factum is required on applications under this rule.
CONSENT IN WRITING
29.06 The respondent may consent in writing to the order sought upon terms included in a draft order filed and a judge, satisfied that the relief sought by the applicant should be granted, may grant the order on such terms without the attendance of counsel.
PART III
TRIAL PROCEEDINGS AND EVIDENCE
RULE 30 – EXCLUSION OF EVIDENCE
APPLICATION OF THE RULE
30.01 This rule applies to applications under subsection 24(2) of theCharter for the exclusion of evidence.
TO WHOM APPLICATION MADE
30.02 Applications under rule 30.01 shall be made to a judge of the court for the court location, assigned to preside over the trial, in the county, district or region in which the trial is to be held.
CONTENTS OF NOTICE
30.03 The Notice of Application in Form 1 shall state
(a) the place and date of hearing as determined in accordance with rules 30.02 and 30.04;
(b) the nature of the application intended to be brought;
(c) the anticipated evidence sought to be excluded, including any anticipated derivative evidence sought to be excluded;
(d) the grounds to be argued, including a concise statement of the exclusionary issue under the Charter to be raised, a statement of the exclusionary principles under the Charter to be argued and a reference to any statutory provision or rule upon which reliance will be placed;
(e) the documentary, affidavit or other evidence to be used at the hearing of the application;
(f) the precise relief under the Charter sought upon the application; and
(g) whether an order is required abridging or extending the time for service or filing of the Notice of Application or supporting materials required under rule 6.05.
FILING AND SERVING OF NOTICE
General Rule
30.04 (1) Service of the Notice of Application in accordance with rule 30.03 and the supporting materials required by rule 30.05 shall be made upon the prosecutor and all other parties to the proceedings, as the case may be, in accordance with rule 5, not less than 15 days before the date on which the trial proceedings are scheduled to commence.
Filing with Proof of Service
(2) Notice of Application and supporting materials, together with proof of service thereof, shall be filed in the court office for the place where the application is to be heard, at least 10 days before the date on which the trial proceedings are scheduled to commence.
MATERIALS FOR USE ON APPLICATION
Materials to be Filed
30.05 (1) In addition to any other materials that may be required in the proceedings in which the exclusionary issue under the Charter is raised, a Notice of Application under rule 30.03 shall be accompanied by
(a) a copy of the information(s) to which the exclusionary issue raised in the Notice of Application relates;
(b) a transcript of any proceedings earlier taken which are material to a determination of the exclusionary issue raised in the Notice of Application; and
(c) where necessary to complete the record, an affidavit by or on behalf of the applicant deposing to the matters described in subrule (2); and
(d) a copy of any other material in the court file that is necessary for the hearing and determination of the exclusionary issue raised in the Notice of Application.
Affidavit by or on Behalf of the Applicant
(2) The affidavit filed by or on behalf of the applicant described in clause (1)(c) shall include
(a) a description of the affiant’s status and the basis of his or her knowledge of the matters deposed;
(b) a statement of the particulars of the charge to which the application relates; and
(c) a statement of the facts material to a just determination of the exclusionary issue which are not disclosed in any other materials filed in support of the application.
Respondent’s Documentary, Affidavit or Other Evidence
(3) Where the respondent seeks to rely on material that is not required to be filed under subrule (1) or (2), the respondent shall file documentary, affidavit or other evidence upon which reliance shall be placed no later than five days before the hearing of the application.
Factum May be Required
(4) A judge may require that factums complying with rules 6.06 to 6.08 be filed on applications under this rule.
RULE 31 – APPLICATIONS TO ADDUCE EVIDENCE OF
COMPLAINANT’S SEXUAL ACTIVITY
APPLICATION OF THE RULE
31.01 This rule applies to applications under section 276.1 of the Codeto adduce evidence of the complainant’s sexual activity.
TO WHOM APPLICATION MADE
31.02 Applications under rule 31.01 shall be made to a judge of the court for the court location, assigned to preside over the trial, in the county, district or region in which the trial is to be held.
CONTENTS OF NOTICE
31.03 The Notice of Application in Form 1 shall state
(a) the place and date of hearing as determined in accordance with rules 31.02 and 31.04;
(b) detailed particulars of the evidence that the accused seeks to adduce and the relevance of such evidence to an issue at trial;
(c) the grounds to be argued, including a concise statement of the probative value of the evidence sought to be adduced and a reference to any statutory provision or rule upon which reliance will be placed;
(d) the documentary, affidavit or other evidence to be used at the hearing of the application; and
(e) whether an order is required abridging or extending the time for service or filing of the Notice of Application or supporting materials required under rule 6.05.
FILING AND SERVING OF NOTICE
General Rule
31.04 (1) Service of the Notice of Application in accordance with rule 31.03 and the supporting materials required by rule 31.05 shall be made upon the prosecutor in accordance with rule 5, at least seven days before the date fixed for the hearing of the application.
Filing with Proof of Service
(2) Notice of Application and supporting materials, together with proof of service thereof, shall be filed in the court office for the place where the application is to be heard, at least seven days before the date fixed for the hearing of the application.
MATERIALS FOR USE ON APPLICATION
Materials to be Filed
31.05 (1) In addition to any other materials that may be required in the proceedings in which it is sought to adduce evidence of the complainant’s sexual activity, a notice of application under rule 31.03 shall be accompanied by
(a) a copy of the information(s) to which the evidentiary issue raised in the notice of application relates;
(b) a transcript of any proceedings earlier taken which are material to a determination of the evidentiary issue raised in the Notice of Application;
(c) where necessary to complete the record, an affidavit by or on behalf of the applicant deposing to the matters described in subrule (2); and
(d) a copy of any other material in the court file that is necessary for the hearing and determination of the evidentiary issue raised in the Notice of Application.
Affidavit by or on Behalf of the Applicant
(2) The affidavit filed by or on behalf of the applicant described in clause (1)(c) shall include
(a) a description of the affiant’s status and the basis of his or her knowledge of the matters deposed;
(b) a statement of the particulars of the charge to which the application relates; and
(c) a statement of the facts material to a just determination of the evidentiary issue which are not disclosed in any other materials filed in support of the application.
Respondent’s Documentary, Affidavit or Other Evidence
(3) Where the respondent seeks to rely on material that is not required to be filed under subrule (1) or (2), the respondent shall file documentary, affidavit or other evidence upon which reliance shall be placed no later than five days before the hearing of the application.
Factum May be Required
(4) A judge may require that factums complying with rules 6.06 to 6.08 be filed on applications under this rule.
RULE 32 – APPLICATIONS FOR PRODUCTION OF RECORDS NOT
IN POSSESSION OF PROSECUTOR
APPLICATION OF THE RULE
32.01 (1) This rule applies to applications made under section 278.3 of the Code for the production of records not in the possession of the prosecutor.
DEFINITION OF RECORD
32.01 (2) For the purposes of this rule, “record” means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes, without limiting the generality of the foregoing, medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.
TO WHOM APPLICATION MADE
32.02 Applications under rule 32.01 shall be made to a judge of the court for the court location, assigned to preside over the trial, in the county, district or region in which the trial is to be held.
CONTENTS OF NOTICE
32.03 The Notice of Application in Form 1 shall state
(a) the place and date of hearing as determined in accordance with rules 32.02 and 32.04;
(b) detailed particulars identifying the record that the accused seeks to have produced and the name of the person who has possession or control of the record;
(c) the grounds on which the accused relies to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify;
(d) the documentary, affidavit or other evidence to be used at the hearing of the application; and
(e) whether an order is required abridging or extending the time for service or filing of the Notice of Application or supporting materials required under rule 6.05.
FILING AND SERVING OF NOTICE
General Rule
32.04 (1) Service of the Notice of Application in accordance with rule 32.03 and the supporting materials required by rule 32.05 shall be made upon the prosecutor, on the person who has possession or control of the record and on any other person to whom, to the knowledge of the accused, the record relates, in accordance with rule 5, at least seven days before the date fixed for the hearing of the application.
Filing with Proof of Service
(2) Notice of Application and supporting materials, together with proof of service thereof, shall be filed in the court office for the place where the application is to be heard, at least seven days before the date fixed for the hearing of the application.
MATERIALS FOR USE ON APPLICATION
Materials to be Filed
32.05 (1) In addition to any other materials that may be required in the proceedings in which the accused makes application for the production of records, a notice of application under rule 32.03 shall be accompanied by
(a) a copy of the information(s) to which the production issue raised in the notice of application relates;
(b) a transcript of any proceedings earlier taken which are material to a determination of the production issue raised in the notice of application;
(c) where necessary to complete the record, an affidavit by or on behalf of the applicant deposing to the matters described in subrule (2);
(d) a copy of any other material in the court file that is necessary for the hearing and determination of the production issue raised in the notice of application; and
(e) a copy of the subpoena served on the person who has possession or control of the record.
Affidavit by or on Behalf of the Applicant
(2) The affidavit filed by or on behalf of the applicant described in clause (1)(c) shall include
(a) a description of the affiant’s status and the basis of his or her knowledge of the matters deposed;
(b) a statement of the particulars of the charge to which the application relates; and
(c) a statement of the facts material to a just determination of the production issue which are not disclosed in any other materials filed in support of the application.
Respondent’s Documentary, Affidavit or Other Evidence
(3) Where the respondent seeks to rely on material that is not required to be filed under subrule (1) or (2), the respondent shall file documentary, affidavit or other evidence upon which reliance shall be placed no later than five days before the hearing of the application.
Factum May be Required
(4) A judge may require that factums complying with rules 6.06 to 6.08 be filed on applications under this rule.
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