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Rules of the Provincial Court of Newfoundland and Labrador in Criminal Proceedings (SI/2004-134)

Regulations are current to 2024-03-06

PART IGeneral (continued)

Rule 4 — Court Documents (continued)

Binding of transcripts

 Transcripts of evidence for use on an application or preliminary inquiry or at trial shall have a light blue back sheet of cover stock.

Transcripts

Marginal note:Paper Size

  •  (1) Evidence shall be transcribed on paper 216 mm by 279 mm in size with a margin 25 mm wide on the left side delimited by a vertical line.

  • Marginal note: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 not more than 15 mm from the top of the first page and each page, other than the first page, shall be numbered consecutively at the top of each page.

  • Marginal note:Standards

    (3) The text shall be typewritten on 30 lines numbered in the margin every fifth line.

  • (4) Headings, such as “Swearing of a Witness” or “Direct Examination and Cross-examination”, shall be capitalized and separated from the preceding 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 mm, by the question.

  • (6) Every answer shall commence on a new line and shall begin with the designation “A.” followed, within 10 mm, by the answer.

  • (7) The first line of a question or answer shall be indented 35 mm from the margin and be no more than 130 mm 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 be no more than 165 mm 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 mm from the margin and be no more than 150 mm in length, and questions shall be numbered consecutively by means of a number placed within the 15 mm to the right of the margin.

  • (10) Lines of text other than questions and answers shall be indented 35 mm from the margin and be no more than 130 mm in length.

  • (11) Every transcript of evidence taken in or out of court shall have

    • (a) a cover page setting out

      • (i) the name of 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 numbers 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

  •  (1) If 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 14.

  • (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

 If an issue is raised as to the constitutionality of an Act or regulation, the party raising the issue shall serve a Notice of Application and Constitutional Issue in Form 3.

Rule 5 — Service of Documents

General rules for manner of service

Marginal note:Notices of Application and Other Documents

  •  (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 most recent address for service provided by the party or person or, if no such address has been provided, to the party’s or person’s latest known address, or

      • (ii) by personal service or by an alternative to personal service.

Personal service

  •  (1) If a document is to be served personally, the service shall be made

    • Marginal note:Individual

      (a) on an individual, by leaving a copy of the document with the individual;

    • Marginal note:Corporation

      (b) on any corporation, by leaving a copy of the document with an officer or director 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;

    • Marginal note: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 court centre where the adjudication was or is to be made;

    • Marginal note:Attorney General of Canada

      (d) on the Attorney General of Canada, by leaving a copy of the document at the office of the Attorney General of Canada at St. John’s, 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

    • Marginal note:Attorney General of Newfoundland and Labrador

      (e) on the Attorney General of Newfoundland and Labrador, by leaving a copy of the document at the office of the crown attorney 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

Marginal note:Available

  •  (1) If 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.

  • Marginal note:Acceptance of Service by Counsel

    (2) Service on a party who has counsel may be made by leaving a copy of the document with the counsel, 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.

  • Marginal note:Service by Mail to Latest Known Address

    (4) Service of a document may be made by sending a copy of the document together with an Acknowledgment of Receipt Card in Form 4 by mail to the latest 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 day on which the sender first receives either receipt, signed as provided by clause (a).

  • Marginal note:Service at Place of Residence

    (5) Where an attempt is made to effect personal service at a person’s place of residence 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.

  • Marginal note:Service on a Corporation

    (6) Where the head office or principal place of business of a corporation cannot be found at the most recent address recorded with the Registry of Companies, 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

Marginal note:Order by the court

  •  (1) Where personal service of a document is required by these rules, and it appears to the court that it is impratical to effect personal service, the court may make an order for subsituted service or, if necessary in the interests of justice, may dispense with service.

  • Marginal note: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) If an order is made dispensing with service of a document, the document is 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

  •  (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 an employee in counsel’s office; or

    • (c) transmitting the document by telecopier in accordance with subrule (2).

  • (2) A document that is served telecopier shall include a cover page indicating

    • (a) the sender’s name, address and telephone number;

    • (b) the name of counsel of record to be served;

    • (c) the date and time of transmission;

    • (d) the total number of pages transmitted, including the cover page;

    • (e) the telephone number from which the document is transmitted; and

    • (f) the name and telephone number of a person to contact in the event of transmission problems.

Service by mail

Marginal note:Manner of Service

  •  (1) Where a document is to be served by mail under these rules, a copy of the document shall be sent by pre-paid first class mail or by registered mail.

  • Marginal note: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.

Document does not reach person served

 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, or 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

 If 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 when the court is satisfied that the document

  • (a) came to the notice of the person to be served; or

  • (b) 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

Marginal note:Affidavit of Service

  •  (1) Service of a document may be proved by an affidavit of the person who served it in Form 5.

  • Marginal note: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.

Rule 6 — Applications

Applications

  •  (1) If a statute authorizes, permits or requires that an application or motion be made to or an order or determination be 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 I.

  • (2) This Rule applies to all proceedings commenced by a Notice of Application, except if otherwise expressly provided by these rules or as otherwise ordered by a judge in accordance with rule 2.02.

Applications — to whom to be made

  •  (1) An application shall be made to a judge sitting at the court centre in which the proceeding is being or is to be held, unless otherwise provided by these rules.

  • (2) The party making an application shall obtain from the clerk a place, date and time of hearing of the application.

Content of notice

 Every Notice of Application 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 on;

  • (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

Marginal note:Generally

  •  (1) The Notice of Application shall be served on all parties and, if there is uncertainty as to whether anyone else should be served, the applicant may apply ex parte to a judge for an order for directions.

  • Marginal note:Minimum Notice Period

    (2) Except if otherwise expressly provided by the Code or these rules, or as ordered by a judge in accordance with rule 2.02, the Notice of Application shall be served not later than 15 days before the date of the hearing of the application.

  • Marginal note:Filing Proof of Service

    (3) Except if otherwise expressly provided by the Code or these rules, or except as ordered by a judge 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

Marginal note:Application Record and Factum

  •  (1) The applicant shall, when the court requires under subrule (4),

    • (a) serve an application record, together with a factum prepared in accordance with rule 6.07 if a judge of the court orders that a factum be filed or if these rules expressly provide for the filing of a factum, not later than 15 days before the date of the hearing, on every respondent; and

    • (b) file the application record, including any factum, 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.

  • Marginal note:Respondent’s Application Record and Factum

    (3) The respondent shall, if a judge orders that a factum shall be filed or if 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, if 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 five days before the date of the hearing of the application.

  • Marginal note:Record and Factum

    (4) If and as necessary in the interests of justice, a judge, before or at the hearing of the application, may order compliance with this rule in whole or in part.

  • Marginal note:Documents May Be Filed as Part of Record

    (5) Any documents served by a party for use on an application may be filed, 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.

  • Marginal note: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.

 

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