Government of Canada / Gouvernement du Canada
Symbol of the Government of Canada

Search

Criminal Proceedings Rules for the Superior Court of Justice (Ontario) (SI/2012-7)

Regulations are current to 2024-02-20 and last amended on 2014-01-01. Previous Versions

Part III: Trial Proceedings and Evidence [Rules 30-39] (continued)

Rule 34 Hearing of Pre-Trial and Other Applications (continued)

Preliminary Assessment of Application

 The presiding judge may conduct a preliminary assessment of the merits of any pre-trial or other application on the basis of the materials filed, and, if satisfied that there is no reasonable prospect that the application could succeed, may dismiss the application without further hearing or inquiry.

Dismissal for Non-Compliance with Rules

 Where an applicant has failed to comply with the rules governing an application, the application shall not be heard unless the presiding judge grants leave, after taking into account all the circumstances of the case, including but not limited to:

  • (a) the nature of the applicant’s non-compliance with these rules;

  • (b) the right of the applicant to raise issues, including issues relating to the admissibility of evidence and to have those issues determined on their merits;

  • (c) the right of other parties to have a reasonable opportunity to respond to any issues raised by an applicant;

  • (d) the need for an expeditious determination of pre-trial applications and the orderly conduct of trial proceedings;

  • (e) the history of the pre-trial applications and the proceedings;

  • (f) any notice given to other parties about the issues raised in the pre-trial applications;

  • (g) the apparent merits of the application as reflected in any materials filed and any submissions made in the proceeding;

  • (h) any prejudice to any other party in the proceeding;

  • (i) the nature of the issues raised and the extent of their impact on the course of the trial or other proceeding;

  • (j) any explanation advanced for failure to comply with these rules; and,

  • (k) any other factors the judge considers relevant to his or her determination.

Limitations on Oral Argument

 The presiding judge may impose reasonable limits on oral submissions on any pre-trial or other application.

Written Argument

 Where the presiding judge is satisfied that the interests of justice require it, she or he may order that the parties deliver written argument about any issue to be heard and determined as a pre-trial application.

Rule 35 Dangerous and Long-Term Offender Applications

Application of Rule

 This rule applies when the prosecutor indicates an intention to apply to have an offender declared a dangerous offender or a long-term offender under Part XXIV of the Code.

  • SI/2014-5, s. 19

Pre-Hearing Conference Report Form

  •  (1) If the prosecutor indicates an intention to apply to have the offender declared a dangerous offender or long-term offender, the prosecutor and solicitor of record shall complete questions 1 to 7 of Form 23 prior to his or her application.

  • (2) If the court grants the application under subsection 752.1(1) of the Code, the prosecutor and solicitor of record shall complete questions 8 to 30 of Form 23 prior to the proceedings described in sections 753 or 753.1 of the Code, as the case may be.

  • SI/2014-5, s. 20

Case Supervision Required

  •  (1) Upon the prosecutor’s indication to apply to have the offender declared a dangerous offender or long-term offender under Part XXIV of the Code, the sentencing hearing shall be subject to case supervision under section 482.1 of the Code and rule 29.

  • (2) The case supervision judge shall be the trial judge, the judge designated to conduct the dangerous offender or long-term offender application if different than the trial judge, or a judge designated by the Regional Senior Judge.

  • SI/2014-5, s. 21

Powers of Case Supervision Judge

 The case supervision judge may:

  • (a) establish or revise any schedule for pre-hearing applications;

  • (b) secure the parties’ agreement, or give directions, about the order in which pre-hearing applications shall be heard;

  • (c) secure the parties’ agreement, or give directions, about the manner in which evidence will be presented on the pre-hearing applications and at the hearing;

  • (d) secure the parties’ agreement to, or give directions about, a judge other than the sentencing judge hearing and determining pre-hearing applications;

  • (e) secure the parties’ agreement, or give directions about, the manner in which decisions made by a judge other than the sentencing judge on pre-hearing applications are to be incorporated into the record or other proceedings;

  • (f) secure the parties’ agreement, or give directions, about the materials to be filed in support of and in response to any pre-hearing applications;

  • (g) establish a schedule for the service and filing of any materials required for any pre-hearing applications;

  • (h) secure the parties’ agreement to, or give directions about, admissions of fact or other agreements about issues of fact, and the attendances of witnesses on issues not in dispute;

  • (i) require the prosecutor to provide a list of the names of the persons who will, or may, be called as witnesses for the prosecution;

  • (j) secure the parties’ agreement, or give directions, about any interpreters or technological equipment required in the proceedings, and make arrangements through court personnel to ensure such requirements are met;

  • (k) secure the parties’ agreement to, or give directions about, the manner in which evidence may be presented at the application; and,

  • (l) identify contested issues of fact and law and explore methods to resolve them.

Part IV: Summary Conviction Appeals and Extraordinary Remedies [Rules 40-49]

Rule 40: Summary Conviction Appeals[Code, ss. 813, 830(1)]

Definitions

 In this rule, and in rules 41 and 42, unless the context requires otherwise,

adjudication

adjudication means

  • (i) in appeals under paragraph 813(a) of the Code,

    • (i) a conviction or order made against a defendant,

    • (ii) a sentence passed on a defendant, or

    • (iii) a verdict of unfit to stand trial or not criminally responsible on account of mental disorder;

  • (ii) in appeals under paragraph 813(b) of the Code,

    • (i) an order that stays proceedings on an information or dismisses an information,

    • (ii) a sentence passed upon a defendant, or

    • (iii) a verdict of not criminally responsible on account of mental disorder or unfit to stand trial; and

  • (iii) in appeals under subsection 830(1) of the Code, a conviction, judgment, verdict of acquittal, or verdict of not criminally responsible on account of mental disorder or of unfit to stand trial or other final order or determination of a summary conviction court; (décision)

appeal

appeal means an appeal from or against an adjudication in proceedings before a summary conviction court pursuant to Part XXVII of the Code; (appel)

appeal court

appeal court means the Superior Court of Justice, and in the case of appeals under section 813 of the Code, means the Superior Court of Justice in the region or county where the adjudication under appeal was made; (cour d’appel)

appellant

appellant means

  • (i) in appeals under paragraph 813(a) of the Code, the defendant,

  • (ii) in appeals under paragraph 813(b) of the Code, the informant or the Attorney General or his or her agent,

  • (iii) in appeals under subsection 830(1) of the Code, a party in proceedings before a summary conviction court under Part XXVII of the Code or the Attorney General; (appelant)

Attorney General

Attorney General means either the Attorney General for the Province of Ontario where the prosecution was instituted or conducted by the Attorney General of Ontario, or, where the prosecution was initiated or conducted at the instance of the Government of Canada, the Attorney General of Canada; (procureur général)

convicted person

convicted person includes a person who has been granted a discharge under section 730 of the Code; (personne condamnée)

counsel

counsel means a barrister or solicitor, in respect of the matters or things that barristers or solicitors, respectively, are authorized by the law of a province to do or perform in relation to legal proceedings, who represents a party to the appeal, and, unless otherwise indicated in these rules where a party to the appeal has no counsel, includes that party; (procureur)

file

file means file with the clerk of the appeal court; (déposer)

inmate appeal

inmate appeal means an appeal by a person who at the time the notice of appeal is given is in custody, and is not represented by counsel for the appeal; (appel d’un détenu)

judge

judge means a judge of the appeal court; (juge)

summary conviction court

summary conviction court means a person who has jurisdiction in the region or county where the proceedings under Part XXVII of the Code have arisen and who:

  • (i) is given jurisdiction over the proceedings by the enactment under which the proceedings are taken,

  • (ii) is a justice or a provincial court judge, where the enactment under which the proceedings are taken does not expressly give jurisdiction to any person or class of persons, or

  • (iii) is a provincial court judge, where the enactment under which the proceedings are taken gives jurisdiction in respect thereof to two or more justices; (cour des poursuites sommaires)

trial court

trial court means the summary conviction court from or against whose adjudication an appeal is being taken; (tribunal de première instance)

Application

 Except as otherwise provided by the Code, any other Act of the Parliament of Canada or enactment made thereunder, this rule applies to appeals as defined in rule 40.01.

Extension or Abridgment of Time, Applications for Directions, and Orders without the Attendance of Counsel

  •  (1) Any time limited by this rule may be extended or abridged by a judge, before or after the expiration of the time prescribed, in accordance with rule 3.02, except that the time limited by subrule 40.16(1) for making an application under subsection 822(4) of the Code shall not be extended pursuant to rule 3.02.

  • (2) Any party to an appeal or the clerk of the appeal court may apply to a judge for directions regarding the appeal, on notice to every other party.

Notice
  • (3) Except in an inmate appeal, notice of an application to extend or abridge the time limit or for directions, unless on consent or otherwise ordered by a judge, shall be served on every other party or as otherwise specified by this rule.

  • (4) Where an extension or abridgement of time relating to an inmate appeal is granted by a judge, the endorsement to that effect shall constitute an order extending or abridging the time.

  • (5) Except for an order for release from custody under section 816 of the Code, any order provided for in rules 40 to 42 may be made with the consent in writing of the parties, without the attendance of counsel.

  • SI/2014-5, s. 22(E)

Form of Notice of Appeal

Inmate appeals
  •  (1) The notice of appeal in an inmate appeal shall be in Form A to the Criminal Appeal Rules of the Court of Appeal for Ontario, with necessary modifications.

Counsel’s appeal
  • (2) The notice of appeal in any other appeal by a convicted person shall be in Form 2.

Appeal by Attorney General
  • (3) A notice of appeal by the Attorney General shall be in Form 2, with necessary modifications.

Notice of Appeal Contents
  • (4) All notices of appeal shall be:

    • (a) dated and signed by the appellant, or the counsel of record of the appellant, and

    • (b) directed to the clerk of the appeal court.

Constitutional Question
  • (5) Where a notice of appeal raises a constitutional question as set out in section 109 of the Courts of Justice Act, the notice shall be titled “Notice of Appeal and Constitutional Question” and shall be served and filed in accordance with subrule 40.06(1).

Times for Service and Filing

  •  (1) An appellant shall serve and file the notice of appeal,

    • (a) where the appeal is from a conviction or sentence or both, within 30 days after the day on which the sentence was imposed; or,

    • (b) in any other case, within 30 days after the day on which the adjudication under appeal was made.

Manner of Service and Filing

  •  (1) Notice of appeal shall be given:

    • (a) in an inmate appeal by giving the notice of appeal to the senior official of the institution in which the appellant is confined. The official shall transmit the notice of appeal to the clerk of the appeal court for the jurisdiction in which the proceeding appealed from was held. The official shall forthwith give to the inmate any documents that are transmitted to the inmate by the clerk of the appeal court, and shall inform the clerk of the appeal court of doing so.

    • (b) in an appeal other than an inmate appeal,

      • (i) Where the appeal is by the defendant, by serving and filing with the clerk of the appeal court for the jurisdiction in which the proceeding appealed from was held, a copy of the notice of appeal with proof of service on the Attorney General, at the office designated for service of notice of summary conviction appeals in the region in which the trial was held,

      • (ii) Where the appeal is by the Attorney General, by filing with the clerk of the appeal court for the jurisdiction in which the proceeding appealed from was held, a copy of the notice of appeal, with proof of personal service on each respondent to the appeal, and

      • (iii) Where the notice of appeal raises a constitutional question as set out in section 109 of the Courts of Justice Act, by also serving

        • a. The Public Law Division, Constitutional Law Branch of the Ministry of the Attorney General; and,

        • b. The Attorney General of Canada at the Regional Office of the Public Prosecution Service of Canada at Toronto or at Ottawa.

Proof of Service
  • (2) Except as ordered by a judge, a party serving a Notice of Appeal shall within the time specified in rule 40.05 file proof of service, by affidavit of the person who served it, or by a counsel of record’s written and dated admission or acceptance of service.

Substituted Service
  • (3) Where a respondent cannot be found after reasonable efforts have been made to serve the notice of appeal, the appellant may apply for directions pursuant to subrule 40.03(2) without notice, to effect substituted service in the manner directed and within the period directed by a judge, pursuant to section 678.1 of the Code.

 

Date modified: