Part I: General Matters [Rules 1-19]

Rule 1 Citation, Application and Interpretation

Citation

Short Title

• 1.01 (1) These rules may be cited as the Criminal Proceedings Rules for the Superior Court of Justice (Ontario).

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) paragraphs (for example, paragraph 1.01(2)(a) or 4.06(1)(b)), and

    • (iii) subparagraphs (for example, subparagraph 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, paragraph or subparagraph (for example, rule 1.01, rule 1.01(2), rule l.01(2)(c), rule 1.01(2)(c)(iii)).

Application of Rules

Superior Court of Justice

• 1.02 (1) These rules are enacted pursuant to subsection 482(1) of the Criminal Code and apply to prosecutions, proceedings, applications and appeals, as the case may be, within the jurisdiction of the Superior Court of Justice, instituted in relation to any matter of a criminal nature or arising from or incidental to any such prosecution, proceeding, application or appeal.

Parole Ineligibility Review Hearings

• (2) The Ontario Review of Parole Ineligibility Rules (Rule 50), as enacted by the Chief Justice of the Superior Court of Justice under subsection 745.64(1) of the Code, are attached to these rules for administrative purposes.

Transitional Provisions

• (3) These rules come into force on March 1, 2012.

• (4) The following are repealed:

  • (a) Part I of the Rules Respecting Criminal Proceedings, SI/85-152, Canada Gazette Part II, August 21, 1985 as amended;

  • (b) Ontario Supreme Court Rules Respecting Pre-hearing Conferences in Criminal Matters, SI/86-145, Canada Gazette Part II, August 20, 1986;

  • (c) Ontario District Court Rules Respecting Pre-hearing Conferences in Criminal Matters, SI/86-214, Canada Gazette Part II, December 24, 1986;

  • (d) Ontario County and District Court Judges’ Criminal Courts Summary Conviction Appeal Rules, SI/77-213, Canada Gazette Part II, November 9, 1977;

  • (e) Ontario Court of Justice Criminal Proceedings Rules, SI/92-99, 1992 Canada Gazette Part II, June 3, 1992;

  • (f) Ontario Rules of Practice Respecting Reduction in the Number of Years of Imprisonment Without Eligibility for Parole, SOR/92-270, 1992 Canada Gazette Part II, June 3, 1992; and,

  • (g) Rules Amending the Ontario Court of Justice Criminal Proceedings Rules, SI/97-121, 1997 Canada Gazette Part II, October 29, 1997.

Definitions

1.03 In these rules, unless the context otherwise requires,

affidavit

affidavit means a written statement in Form 4 confirmed by oath, or a solemn affirmation; (affidavit)

appellant

appellant means a person who brings an appeal; (appelant)

applicant

applicant means a person who makes an application; (requérant)

application

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

Charter means the Canadian Charter of Rights and Freedoms; (Charte)

Code

Code means Criminal Code; (Code)

county

county includes a district or a regional, district or metropolitan municipality; (comté)

court

court means the Superior Court of Justice in the county or district in which a proceeding is pending or being heard, as the case may be; (tribunal)

court office

court office means the office of the registrar in the county, district or group of counties in which the proceeding is commenced; (greffe)

deliver

deliver means serve and file with proof of service, and delivery has a corresponding meaning; (remettre)

document

document includes a notice of application, notice of appeal, supplementary notice of appeal, affidavit or any other material required or permitted to be served and filed under these rules; (document)

hearing

hearing means the hearing of an application, motion, reference, appeal or assessment of costs, or a trial; (audience)

holiday

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)

indictment

indictment includes an information; (acte d’accusation)

judge

judge means a judge of the court; (juge)

judgment

judgment means a decision that finally disposes of an application, trial, appeal or other proceeding on its merits and includes a judgment entered in consequence of the default of a party; (jugement)

order

order includes a judgment; (ordonnance)

originating process

originating process includes a notice of application and notice of appeal; (acte introductif d’instance)

proceeding

proceeding includes a trial, application, appeal or other hearing; ( instance)

prosecutor

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 solicitors acting on behalf of either of them; (poursuivant)

registrar

registrar means the Registrar of the Superior Court of Justice, or a local registrar of the Superior Court of Justice, as the circumstances may require; (greffier)

region

region means a region described in Ontario Regulation 705/89; (région)

respondent

respondent means a person against whom an application is made or an appeal is brought, as the circumstances may require; (intimé)

solicitor

solicitor means a barrister and solicitor entitled to practise in the Province of Ontario; (avocat)

solicitor of record

solicitor of record means the solicitor who represents or represented the accused in the proceedings that are the subject of the application or the appeal; (procureur)

statute

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 Acting in Person

• (3) Where an accused is not represented by a solicitor but acts in person, anything that these rules require or permit a solicitor to do shall be done by 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

Court May Dispense with Compliance

2.01 A judge of the court may only dispense with compliance with any rule where and to the extent it is necessary in the interests of justice to do so.

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, other than an originating process, 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 2.01, 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 on one side only 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 (applications) or 2 (appeals) that sets out:

  • (a) the name of the court and the court file number; and,

  • (b) the title of the proceeding in accordance with rule 6 (application) or rule 40 (appeal), but in a document other than an originating process, 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 registrar or is an originating process, the name, address and telephone number of the solicitor filing the document or, where a party acts in person, his or her name, address for service and telephone number; and

  • (d) where the document is issued by a registrar, 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 3 that sets out:

  • (a) the short title of the proceeding;

  • (b) the name of the court and the court file number;

  • (c) in the case of an affidavit, the deponent’s name and the date when he or she swore or affirmed 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 the solicitor serving or filing the document or, where a party acts in person, his or her name, address for service and telephone number.

Certified Copies of Court Documents

4.03 At the request of a person entitled to see a document in a court file and on payment of the prescribed fee, the registrar shall issue a certified copy of the document.

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 in which the proceeding was commenced, 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 in 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 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 2.01.

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 2.01.

Affidavits

Format

• 4.06 (1) An affidavit used in a proceeding shall:

  • (a) be in Form 4;

  • (b) be expressed in the first person;

  • (c) state the full name of the deponent and, if the deponent is a party or a solicitor, 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 registrar for the use of the court, and on the disposition of the matter in respect of which the affidavit was filed, the exhibit shall be returned to the solicitor or party who filed the affidavit, unless the court orders otherwise in accordance with rule 2.01; 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, Appeal Books and Transcripts

• 4.07 (1) Application records shall have a light blue backsheet of 176g/m² weight cover stock.

• (2) Transcripts of evidence for use on an application, at trial or on appeal shall have a red backsheet of 176g/m² weight cover stock.

• (3) Appeal books shall be bound front and back in buff 176g/m² weight cover stock.

• (4) Transcripts of evidence for use in an appeal shall be bound front and back in red 176g/m² weight cover stock, except where the transcript forms part of the appeal book or record, and where there is more than one volume of transcripts, the volumes shall be clearly numbered.

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 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 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 the solicitors; 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 charge to the jury, the objections to the charge and the re-charge commence,

    • (iii) the page number at which the reasons for judgment commence,

    • (iv) a list of the exhibits with the page number at which they were made exhibits, and,

    • (v) 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 registrar shall send them to the registrar at the other location on a party’s requisition in Form 22, on payment of the prescribed fee.

• (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 registrar, after the completion of the hearing, to the registrar 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 5.

Rule 5 Service of Documents

General Rules for Manner of Service

Notices of Application

• 5.01 (1) A notice of application that includes an application for prohibition shall be served personally on the court, judge, justice, coroner or other person who issued the subpoena or warrant, conducted the inquisition or made the other order or determination or the person in charge of the place where the applicant or respondent is in custody.

• (2) A notice of application that includes an application to quash a warrant, conviction, order or determination, other than a subpoena or warrant to compel the attendance of a witness, and that bears the endorsement set out in rule 43.03 shall be served upon the Court Services Manager:

  • (a) by mailing a copy to the Court Services Manager’s office;

  • (b) by leaving a copy of such notice of application at the office of the Court Services Manager; or

  • (c) by telephone transmission of a facsimile of the document, in which case the provisions of subrule 5.05(3) apply, mutatis mutandis.

Notices of Appeal

• (3) Where the appellant is the Attorney General, his or her agent, or was the informant or any party other than the defendant (accused) in proceedings before the trial court, the notice of appeal shall be served personally on each person in respect of whom an appeal is brought against an acquittal, order of dismissal of or staying proceedings on an information, sentence or other final order or other determination, as the case may be.

All Other Documents

• (4) No other notice of application, notice of appeal or other document need 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.

• (5) 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 a solicitor of record by serving the solicitor in a manner provided in rule 5.05;

  • (b) may be served on a party acting in person 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,

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

    • (iii) by emailing a copy of the document in accordance with subrule (6), unless otherwise ordered by a judge.

• (6) Service of a document in accordance with subparagraph (5)(b)(iii) is effective only if

  • (a) the email message includes:

    • (i) the sender’s name, address, telephone number, fax number and email address,

    • (ii) the date and time of transmission, and

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

  • (b) the party acting in person or the person who is not a party provides by email an acceptance of service and confirms the date of the acceptance. If the email acceptance is received between 4 p.m. and midnight, service is deemed to have been made on the following day.

Personal Service

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

  Individual

  • (a) on an individual, other than a person under disability, 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 or Justice

  • (c) on any judge or justice, by leaving a copy of the document with the judge or justice, or with a person in charge of the court office in the region, district, county or group of counties where the adjudication was 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 region, district, county or group of counties where the adjudication was made, or at the Crown Law Office (Criminal Law) of the Ministry of the Attorney General.

• (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 Solicitor

• (2) Service on a party who has a solicitor may be made by leaving a copy of the document with the solicitor, or an employee in the solicitor’s office, but service under this subrule is effective only if the solicitor endorses on the document or a copy of it an acceptance of service and the date of acceptance.

• (3) By accepting service the solicitor shall be deemed to represent to the court that the solicitor 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 6) 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 paragraph (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 by:

  • (a) 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 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, notice of appeal 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 Solicitor of Record

• 5.05 (1) Service of a document on the solicitor of record of a party may be made:

  • (a) by mailing a copy to the solicitor’s office;

  • (b) by leaving a copy with a solicitor or employee in the solicitor’s office;

  • (c) by depositing a copy at a document exchange of which the solicitor is a member or subscriber, but service under this paragraph 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;

  • (d) by telephone transmission of a facsimile of the document in accordance with subrule (3); or

  • (e) by emailing a copy to the solicitor’s office in accordance with subrule (4).

• (2) Service of a document by depositing a copy at a document exchange under paragraph (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:

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

  • (b) the name of the solicitor 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.

• (4) Service of a document in accordance with paragraph (1)(e) is effective only if:

  • (a) the email message includes

    • (i) the sender’s name, address, telephone number, fax number and email address;

    • (ii) the date and time of transmission; and

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

  • (b) the solicitor of record provides an acceptance of service by email and confirms the date of the acceptance. If the email acceptance is received between 4 p.m. and midnight, service is deemed to have been made on the following day.

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 7.

Sheriff’s Certificate

• (2) Personal service or service under subrule 5.03(4) (service at place of residence) of a document by a sheriff or sheriff’s officer may be proved by a certificate of service in Form 8.

Solicitor’s of Record Admission or Acceptance

• (3) A solicitor of record’s written admission or acceptance of service is sufficient proof of service and need not be verified by affidavit.

Document Exchange

• (4) Service of a document under paragraph 5.05(1)(c) (document exchange) may be proved by the date stamp on the document or a copy of it.

Electronic Service

• (5) Service of a document under subparagraph 5.01(5)(b)(iii) or paragraph 5.05(1)(e) may be proved by a certificate of service of the person who served the document stating that he or she:

  • (a) has served the document by emailing a copy in accordance with subparagraph 5.01(5)(b)(iii) or subrule 5.05(4) and has received an acceptance of service, with the date and time of the acceptance;

  • (b) has sworn an affidavit of service containing the particulars set out in the certificate of service;

  • (c) has kept the affidavit of service; and

  • (d) will produce, at the request of the court or a party, the affidavit of service.

Rule 6 Applications

Application of the Rule

• 6.01 (1) Where the Criminal Code or other federal enactment to which the procedural provisions of the Criminal Code apply, authorizes, permits or requires that an application or motion be made to or an order or determination made by a judge of or presiding in the superior court of criminal jurisdiction, or a judge as defined in s. 552 of the Criminal Code, other than a judge presiding at trial upon an indictment, the application shall be commenced by a notice of application in Form 1.

• (2) Rules 6.01 to 6.11 apply to all proceedings commenced by a notice of application, except where these rules expressly provide otherwise, or a judge of this court orders otherwise.

Applications -- To Whom to be Made

6.02 Applications shall be made to a judge of the court in the county, district or region where the criminal proceedings to which the application relates are being or are to be heard.

Content of Notice

6.03 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 applicable rule;

• (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

General Rule re Service

• 6.04 (1) The notice of application shall be served on all parties in accordance with rule 5 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.

Filing Proof of Service

• (2) The notice of application in Form 1 and any other supporting materials required by the Code, other statutes or these rules, or ordered by a judge of the court, together with proof of service, shall be filed in the office of the clerk of the court in the place where the application is to be heard, not later than thirty (30) days before the date of the hearing of the application, unless otherwise ordered by a judge of the court, or unless subrule 20.04(1) applies.

Material for Use on Applications

Application Record

• 6.05 (1) Unless otherwise ordered by a judge of the court or otherwise provided by these rules, an applicant shall serve on every other party and file an application record in accordance with subrule (2), not later than thirty (30) days before the date of the hearing of the application.

• (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 indictment 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

• (3) Where the respondent seeks to rely on material other than that filed by the applicant, the respondent shall serve on every other party and file a respondent’s application record in accordance with subrule 6.05(4), not later than ten (10) days before the date of the hearing of the application.

• (4) The respondent’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; and

  • (b) a copy of any material to be used by the respondent on the application and not included in the application record,

  and the respondent’s application record shall be filed, with proof of service, in the court office where the application is to be heard, not later than ten (10) days before the date of the hearing of the application.

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.

Books of Authorities

• (7) Unless otherwise ordered by a judge of the court, books of authorities in accordance with rule 32 are required and shall be served and filed within the time limits described in subrules (1) and (3).

Factums

• (8) Unless otherwise ordered by a judge of the court, or required by these rules, factums are not required for applications made under this rule.

• (9) Where a judge orders or these rules require that factums be served and filed on an application, the factums shall comply with rule 33 and be served and filed within the time limits described in subrules (1) and (3), unless otherwise ordered by a judge of the court.

The Hearing of Applications

Place of Hearing

• 6.06 (1) Unless otherwise ordered by a judge of the court, an application to which this rule applies shall be heard and determined by a judge of the court in the county or district in which the trial or other proceedings to which the application relates are being or are to be held.

Date of Hearing

• (2) Unless otherwise ordered by a judge of the court, applications shall be heard on a date and at a time fixed by the Registrar on notice to all parties or their solicitors of record.

Evidence on Applications

General Rule: Evidence by Affidavit

• 6.07 (1) Evidence on an application may be given by affidavit in Form 4 and in accordance with rule 4.06, unless the Criminal Code or other applicable statute provides, or a judge of the court orders otherwise in accordance with rule 2.01.

Service and Filing of Affidavit

• (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 in the court office in the place where the motion or application is to be heard in accordance with subrule 6.05(1).

• (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 in 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 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 served on all parties and filed within the time limits described in subrules 6.05(1) and (3), unless otherwise ordered by a judge of the court.

Evidence by Examination of Witnesses

6.08 Subject to the Criminal 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 Statements of Fact

6.09 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 solicitor of record.

Abandonment of Applications

Notice of Abandonment

• 6.10 (1) Where an applicant desires to abandon his or her application, he or she shall serve, in any manner provided by rule 5, a notice of abandonment in Form 9, signed by the solicitor of record in the application, or by the applicant (in which case the signature shall be verified by affidavit, solemn declaration or witnessed by a solicitor 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 the solicitor 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 2.01.

Dismissal on Reference or Application

Notice by the Registrar

• 6.11 (1) Where it appears to the Registrar that a notice of application does not show a substantial ground for the order sought, the Registrar may refer the matter to a judge of the court for summary determination, and, where a matter is referred under this rule, a judge may, if he or she considers that the application is frivolous or vexatious and can be determined without a full hearing, dismiss the application summarily, without calling upon any person to appear for the respondent.

Application by Respondent

• (2) Upon application by the respondent that a notice of application does not show a substantial ground for the order sought, a judge of the court may, if he or she considers that the matter is frivolous or vexatious and can be determined without a full hearing, dismiss the application summarily and cause the applicant to be advised accordingly.

Rule 7 Practice Directions

Power to Issue Practice Directions

7.01 The Chief Justice of the Superior 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 and if issued, such directions may be made applicable to any or all regions.

Part II: Pre-Trial Proceedings [Rules 20-29]

Rule 20 Judicial Interim Release and Review Applications[Code, ss. 520(1), (8); 521(1), (9); 522(1); 523(2)(c)(ii), (3)]

Application of Rule

20.01 This rule applies to applications:

• (a) by an accused under subsections 520(1) and (8) and 522(1) of the Code;

• (b) by the prosecutor under subsections 521(1) and (9) of the Code; and,

• (c) by an accused or the prosecutor at any time prior to the trial, under subparagraph 523(2)(c)(ii) or subsection 523(3) of the Code.

To Whom Made

20.02 Applications under rule 20.01 shall be made to a judge of the court in the county, district or region in which the accused is to be tried on the indictment to which the application relates.

Contents of Notice

• 20.03 (1) The notice of application in Form 1 shall also state whether the accused is to be present at the hearing of the application.

• (2) Where the notice of application in Form 1 states that the accused is to be present at the hearing of the application, the application shall be accompanied by an affidavit which shall contain:

  • (a) a statement as to the place of confinement at which the accused is presently incarcerated;

  • (b) particulars of the date upon which the hearing of the application is anticipated to take place, together with a statement of whether the anticipated hearing date conflicts with any other proceedings in relation to the accused person;

  • (c) a statement of the accused’s intention to be present at the hearing of the application; and,

  • (d) a statement as to the name of the police force or police officer into whose custody it is proposed that the accused be transferred for the purpose of effecting the accused’s attendance at the hearing of the application,

  together with a draft order in Form 13A, and a judge may grant an order requiring that the accused be present at the hearing of the application ex parte and without the attendance of a solicitor of record.

Service of Notice

General Rule

• 20.04 (1) The notice of application under rule 20.03 and supporting materials under rule 20.05 shall be served on the accused or prosecutor, as the case may be, in accordance with rule 5, at least 2 clear days prior to the date fixed for the hearing of the application, unless under s. 520(2) of the Code, the prosecutor otherwise consents.

Manner of Service

• (2) Service of the notice of application and supporting materials shall be made in accordance with rule 5.

Filing with Proof of Service

• (3) The notice of application and supporting materials, together with proof of service thereof, shall be filed in the office of the clerk of the court in the place where the application is to be heard, at least 1 day before the date fixed for the hearing of the application.

Materials for Use on Application

Materials to be Filed

• 20.05 (1) The notice of application in Form 1 under rule 20.03 shall be accompanied by:

  • (a) where the applicant is the accused, the affidavit of the applicant, in accordance with rule 4.06, containing the matters required under subrule (2);

  • (b) where the applicant is the accused and it is practicable to do so, the affidavit of the current or prospective employer by whom it is proposed that the accused be employed upon released;

  • (c) where the applicant is the accused and it is practicable to do so, the affidavit of any person whom it is proposed shall serve as a surety for the accused, if released, disclosing his or her willingness to serve as a surety and the amount for which each is to be liable;

  • (d) where the applicant seeks to review an order earlier made, a transcript of the proceedings on the judicial interim release hearing under section 515 or 522 of the Code, as the case may be, and of previous review proceedings, if any, taken before a justice or judge; and,

  • (e) a legible copy of any exhibits, capable of reproduction, which were filed on the judicial interim release hearing and in any previous review proceedings.

Affidavit of the Applicant

• (2) The affidavit of the applicant required by paragraph (1)(a) shall disclose:

  • (a) the particulars of the charge on which release is sought and any other charge outstanding against the applicant, together with the date or dates scheduled for trial or preliminary inquiry in respect of such charges;

  • (b) the applicant’s places of abode in the 3 years preceding the date of the offence charged and in respect of which release is sought, together with the place where the applicant proposes to reside if released;

  • (c) the applicant’s employment in the 3 years preceding the date of the offence charged in respect of which release is sought, together with whether and where the applicant expects to be employed upon release;

  • (d) the form of order upon which the applicant proposes that release be granted; and,

  • (e) where the applicant proposes that release be by giving an undertaking with conditions or upon entering into a recognizance with sureties, deposit or conditions, where practicable, the terms and conditions of the order sought, including the amount of any recognizance or deposit, as well as the names of any proposed surety and the amount for which each proposed surety is to be liable.

• (3) Where the applicant is the prosecutor or where, as respondent, the prosecutor desires to assert that the detention of the accused is necessary in the public interest, and to rely on material other than required to be filed under subrule (1), the prosecutor may file an affidavit in accordance with rule 4.06 setting out the facts upon which reliance is placed, including the matters referred to in paragraph 518(1)(c) of the Code.

Factum Not Required

• (4) No factum is required for the purposes of applications under this rule.

Order Directing Release

Form of Order

• 20.06 (1) An order directing the terms upon which an accused is to be released from custody upon application under this rule may be in Form 10.

Sufficiency of Order

• (2) An order in Form 10 shall be sufficient authority for a justice to prepare the necessary undertaking or recognizance when satisfied that any condition precedent thereto has been met.

Consent in Writing

• (3) The respondent may consent in writing to the order sought, upon terms included in a draft order in Form 10A, and a judge may grant such order without the attendance of solicitors.

Rule 21 Release of Exhibits for Scientific Testing[Code s. 605(1)]

Application of the Rule

21.01 This rule applies to applications 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 under s. 605(1) of the Code.

To Whom Application Made

21.02 Applications under rule 21.01 shall be made to a judge of the court in the county, district or region in which the accused is to be or is being tried on the indictment to which the application relates.

Service of Notice

General Rule

• 21.03 (1) Service of the notice of application under this rule and the supporting materials required by rule 21.04 shall be made on the prosecutor or accused, as the case may be, in accordance with rule 5, at least 2 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 office of the clerk of the court in the place where the application is to be heard, at least 1 day before the date fixed for the hearing of the application.

Material for Use on Application

Materials to be Filed

• 21.04 (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 paragraph (1)(a) shall contain:

  • (a) the 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 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 at trial;

  • (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 at trial;

  • (e) where the application has not been brought until at or after the commencement of the trial 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 trial proceedings; and,

  • (f) 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.

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 paragraph (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 authority and the basis and extent of his 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) 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 at trial;

  • (h) where the examiner or testing agency is not amenable to the process of the court, a statement whether such person who will examine or test the exhibit will attend to give evidence at trial or upon commission, if ordered; and,

  • (i) 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 at the trial.

Factum May be Required

• (4) A judge may require that factums complying with rule 33 be filed on applications under this rule.

Consent in Writing

21.05 The respondent may consent in writing to the order sought, upon terms included in a draft order in Form 11, and a judge may grant such order without the attendance of solicitors.

Order Directing Release of Exhibits

Form of Order

• 21.06 (1) An order directing the release of exhibits for the purpose of a scientific test or other examination under s. 605(1) of the Code and this rule shall be in Form 11.

Sufficiency of Order

• (2) An order in Form 11 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 22 Applications to Change the Venue of Trial[Code s. 599(1)]

Application of the Rule

22.01 This rule applies to applications on behalf of an accused or the prosecutor to change the venue of trial under subsection 599(1) of the Code.

To Whom Application Made

22.02 Applications under rule 22.01 shall be made to a judge of the court in the county, district or region in which the trial is scheduled to be held upon the indictment, either before or as soon as is reasonably practicable after the accused has been ordered to stand trial.

Contents of Notice

22.03 The notice of application in Form 1 shall include a statement of the territorial division in which it is proposes that the trial proceedings be held.

Service of Notice

General Rule

• 22.04 (1) Service of the notice of application under rule 22.03 and the supporting materials required by rule 22.05 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 office of the clerk of the court in 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

• 22.05 (1) The notice of application in Form 1 under rule 22.03 shall be accompanied by:

  • (a) an affidavit by or on behalf of the applicant, deposing to the matters described in subrule (2);

  • (b) where the application is made under paragraph 599(1)(b) of the Code, an affidavit by or on behalf of the competent authority who has directed that no jury be summoned at the time and place appointed for trial, deposing to the matters described in subrule (3); and

  • (c) a draft order 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 paragraph (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 or district from which prospective jurors would ordinarily be drawn;

  • (c) as exhibits, legible copies or transcripts of the media accounts which constitute the basis of the application; and,

  • (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.

Affidavit of Competent Authority

• (3) The affidavit by or on behalf of the competent authority described in paragraph (1)(b) shall contain:

  • (a) a statement of the reasons why no jury is to be summoned at the time appointed for the accused’s trial in the territorial division where the trial is scheduled to be held;

  • (b) a statement of the date upon which the next jury is to be summoned in the territorial division where the trial is scheduled to be held; and

  • (c) a statement of the dates upon which jurors are to be summoned at the time appointed for trial and prior to the date described in paragraph (b) in other territorial divisions within the same region as described in O. Reg. 705/89.

Factums Required

• (4) Factums complying with rule 33 are required in applications under this rule.

Consent in Writing

22.06 The respondent may consent in writing to the order sought upon terms included in the draft order filed under paragraph 22.05(1)(c) 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 solicitors.

Rule 23 Applications to Procure Attendance of Prisoners[Code, ss. 527(2), (7)]

Application of the Rule

23.01 This rule applies to applications under subsection 527(1) of the Code to procure the attendance of a person who is confined in a prison and under subsection 527(7) of the Code to transfer a prisoner to the custody of a peace officer to assist a peace officer acting in the execution of his duties.

To Whom Application Made

Applications for Attendance at Court Proceedings

• 23.02 (1) Applications under subsection 527(1) of the Code and rule 23.01 shall be made to a judge of the court 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 subsection 527(7) of the Code and rule 23.01 shall be made to a judge of the court in the county, district or region to which the prisoner is to be transferred or in which the prisoner is incarcerated.

Filing of Notice

23.03 The notice of application and supporting materials shall be filed in the office of the clerk of the court in 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

• 23.04 (1) The notice of application in Form 1 under this rule shall also be accompanied by:

  • (a) a copy of the warrant under which the prisoner is held, where it is reasonably practicable to do so;

  • (b) where the application is made under s. 527(1) of the Code, a copy of the indictment to which the application relates;

  • (c) where the application is made under s. 527(1) of the Code, an affidavit by or on behalf of the applicant deposing to the matters described in subrule (2);

  • (d) where the application is made under s. 527(7) of the Code, an affidavit by or on behalf of the prosecutor setting out the matters described in subrule (3);

  • (e) where the application is made under s. 527(7) of the Code, the written consent of the prisoner to the order proposed;

  • (f) a draft order in Form 12 or 13, as the case may be; and,

  • (g) 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 paragraph (1)(c) for applications under subsection 527(1) 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; and,

  • (c) a statement of the reasons why the prisoner’s attendance is required.

• (3) The affidavit of or on behalf of the applicant required by paragraph (1)(d) for applications 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;

  • (b) a statement or description of the purpose for which the transfer of the prisoner is sought;

  • (c) a statement or description of the nature of the assistance which it is reasonably anticipated the prisoner will provide, if transferred;

  • (d) a statement whether the assistance reasonably anticipated from the prisoner is available from other sources;

  • (e) a statement whether notice of the application has been given to the solicitor of record of the prisoner;

  • (f) as an exhibit, the written consent of the prisoner to the proposed transfer;

  • (g) a description of the procedures to be followed to ensure the custody and security of the prisoner;

  • (h) a statement of particulars of the period for which the transfer is required; and,

  • (i) a general description of the locations at which the attendance of the prisoner will be required.

Application Record and Factum

• (4) Unless otherwise ordered, in accordance with rule 2.01, by the judge before whom an application under this rule and s. 527(1) or (7) of the Code is returnable, no application record or factum shall be required.

Attendance Not Required

• (5) Unless otherwise ordered, in accordance with rule 2.01, by the judge before whom an application under this rule and s. 527(1) or (7) of the Code is returnable, the order sought may be given ex parte and without the attendance of the solicitor of record for the applicant.

Rule 24 Applications to Take Evidence on Commission[Code, s. 709]

Application of the Rule

24.01 This rule applies to applications on behalf of an accused or the prosecutor for an order appointing a commissioner to take the evidence of a witness under section 709 of the Code.

To Whom Application Made

24.02 Applications made under rule 24.01 shall be made to a judge of the court in the county, district or region in which the trial is being or is scheduled to be held, either before or as soon as is reasonably practicable after the trial date has been fixed.

Contents of Notice

24.03 A notice of application in Form 1 under rule 24.01 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

24.04 Service of the notice of application under rule 24.03 and the supporting materials required by rule 24.05 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 trial upon the indictment.

Materials for Use on Application

Materials to be Filed

• 24.05 (1) The notice of application in Form 1 under rule 24.03 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 duly qualified 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 14 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 paragraph (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 and of their 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 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 will be unfair prejudice to the party opposite by the order of a commission,

    • (vii) whether there will be any serious disruption of the trial proceedings 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 witness;

  • (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 Required

• (3) Factums complying with rule 33 are required on applications under this rule.

Consent in Writing

24.06 The respondent may consent in writing to the order sought upon terms included in a draft order in Form 14 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 solicitors.

Order for Examination

Contents of Order

• 24.07 (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 solicitor of record 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 14 authorizing the taking of evidence before a named commissioner; and,

  • (b) a letter of request in Form 15 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 16.

• (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 the solicitor of record for the applicant or 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

• 24.08 (1) Before being examined, the witness shall take an oath or make an affirmation or, where the conditions of s. 16(3) of the Canada 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 s. 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

• 24.09 (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

• 24.10 (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) 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 paragraph (a) as are specified in the process compelling attendance,

  unless the commissioner orders otherwise in the interests of justice.

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

• 24.11 (1) The solicitor of record for the applicant shall examine the witnesses 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 the solicitor of record for the applicant has been concluded, the solicitor 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, the solicitor of record of the applicant may re-examine the witness in accordance with the rules of evidence which would apply at trial.

Objections and Rulings

Objections

• 24.12 (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 trial judge before the evidence is used at 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 trial judge.

Rulings by Commissioner

24.13 A commissioner who is not the 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 trial judge is subject to review by the trial judge.

Evidence Taken to be Recorded

24.14 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 2.01 or the parties agree otherwise.

Typewritten Transcript

Preparation of Transcript

• 24.15 (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 for it, shall provide an additional copy for the use of the court.

Use of Evidence at Trial

24.16 The judge presiding at the 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

• 24.17 (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 24.16

• (2) Rule 24.16 applies, with necessary modifications, to a tape or other recording made under subrule (1).

Rule 25 Applications for Removal as Solicitor of Record

Application of the Rule

25.01 This rule applies to applications by the solicitor of record for an accused to be removed as solicitor of record, and to applications by the prosecutor to have the solicitor of record for an accused removed as solicitor of record.

To Whom Application Made

25.02 Applications under rule 25.01 shall be made to a judge of the court in the county or district 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 trial to ensure that no adjournment of the proceedings will be required for such purpose, or, where the matter arises at trial, to the trial judge.

Service of Notice

General Rule

• 25.03 (1) Service of the notice of application under rule 25.03 and the supporting materials required by rule 25.05 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 trial of the indictment to which the application relates.

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 the solicitor 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 office of the clerk of the court in 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 be accompanied by an affidavit by or on behalf of the applicant, deposing to the 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 trial 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 the solicitor of record for the accused removed as solicitor of record, including, where available, transcripts of proceedings taken upon such applications;

  • (c) where the application is made by the solicitor 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 trial proceedings is likely or will be required to enable the accused to retain and instruct a new solicitor of record to proceed to trial and, if so, when it is proposed that trial proceedings shall commence; and,

  • (f) where applicable, a statement of the identity of the new solicitor of record and his or her undertaking to proceed to trial or other disposition on the date specified under paragraph (e).

Factum May be Required

• (3) A judge may require that factums complying with rule 33 be filed on applications under this rule.

Consent in Writing

25.05 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 solicitors.

Rule 26: Applications for Adjournment

Application of the Rule

26.01 This rule applies to applications on behalf of an accused or the prosecutor for an order adjourning trial proceedings, after a date has been fixed for trial, but prior to commencement of the trial.

To Whom Application Made

26.02 Applications under rule 26.01 shall be made to a judge of the court in the county or district in which the trial is scheduled to be held upon the indictment, after the matters giving rise thereto have arisen, whether before or after the trial date has been fixed.

Service of Notice

General Rule

• 26.03 (1) Service of the notice of application under this rule and the supporting materials required by rule 26.05 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.

Filing with Proof of Service

• (2) Notice of application and supporting materials, together with proof of service thereof, shall be filed in the office of the clerk of the court in 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

• 26.04 (1) The notice of application in Form 1 under this rule shall be accompanied by an affidavit by or on behalf of the applicant, deposing to the 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 indictment in which is contained the charge upon which the order adjourning the date upon which trial proceedings are scheduled to commence is sought;

  • (b) particulars of any prior applications, whether on behalf of the accused or the prosecutor, to have the trial of the indictment adjourned from a date fixed for trial 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 matter for trial.

Application Record and Factum Not Required

• (3) No application record or factum is required on applications under this rule.

Consent in Writing

26.05 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 solicitors.

Rule 27: Constitutional Issues

Application of the Rule

27.01 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 Criminal Code or otherwise; and,

• (c) to stay proceedings upon an indictment against an accused, in whole or in part, or for any other remedy under subsection 24(1) of the Charter, and/or subsection 52(1) of the Constitution Act, 1867 on account of an infringement or denial of any right or freedom guaranteed under the Charter or otherwise.

To Whom Made

• 27.02 (1) Applications under this rule shall be made to a judge of the court in the county, district or region where the criminal proceedings to which the application relates are being or are to be heard.

• (2) If an application made under paragraph 27.01(a) or (b) relates to an application under Part III of these rules, the application under this rule shall be heard and determined by the judge who hears the applications under Part III of these rules.

Contents of Notice

27.03 The notice of application and constitutional issue in Form 5 shall state:

• (a) the place and date of hearing in accordance with rules 27.02 and 27.04;

• (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 any 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 Service of Notice

General Rule

• 27.04 (1) An applicant shall give notice of application and constitutional issue in Form 5 and in accordance with rule 27.03, not later than thirty (30) days before the date on which the application is scheduled to be heard.

Manner of Service

• (2) For applications under rule 27.01 for a declaration or remedy otherwise than at trial before the trial judge, service of the notice of application and constitutional issue in Form 5 and other materials required by these rules, the Criminal Code or federal statute shall be made upon:

  • (a) the Constitutional Law Division 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;

  • (c) all other parties to the proceedings; and,

  • (d) the office of the prosecutor having carriage of the proceedings.

• (3) Where applications under rule 27.01 for a declaration or other remedy are to be made at trial before the trial judge, service of the notice of application and constitutional issue in Form 5 and other materials required by these rules, the Criminal Code or other federal statute shall be made upon:

  • (a) the Constitutional Law Division 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;

  • (c) all other parties to the proceedings;

  • (d) the office of the prosecutor having carriage of the proceedings; and,

  • (e) upon such other persons and upon such terms as the trial judge may direct.

Filing with Proof of Service

• (4) Notice of application and constitutional issue in Form 5 and supporting material, together with proof of service thereof, shall be filed in the office of the clerk of the court in the place where the application is to be heard, at least thirty (30) days before the date fixed for the hearing of the application.

Materials for Use on Application

Application Record

• 27.05 (1) Unless otherwise ordered by a judge of the court, an applicant shall serve on every other party and file an application record in accordance with subrule 6.05(2) in the office of the clerk of the court in the place where the application is to be heard, not later than thirty (30) days before the date on which the application is scheduled to be heard.

Respondent’s Application Record

• (2) Where the respondent seeks to rely on material other than that filed by the applicant, the respondent shall serve on every other party and file a respondent’s application record in accordance with subrule 6.05(4), not later than ten (10) days before the date of the hearing of the application, unless otherwise ordered by a judge of the court.

Intervenor’s Application Record

• (3) Where an intervenor seeks to rely on material other than that filed by the applicant, respondent or any other person granted leave to intervene, the intervenor shall serve on every party and other intervenor and file an intervenor’s application record in accordance with subrule 27.05(4), not later than five (5) days before the date of the hearing of the application, unless otherwise ordered by a judge of the court.

• (4) An intervenor’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; and

  • (b) a copy of any material to be used by the intervenor on the application and not included in any other application record filed on the application.

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.

Books of Authorities

• (7) Unless otherwise ordered by a judge of the court, books of authorities in accordance with rule 32 are required and shall be served and filed within the time limits described in subrules 6.05(1) and (3).

Factums

• (8) Unless otherwise ordered by a judge of the court, factums are required for applications made under this rule.

• (9) Factums shall comply with rule 33 and be served and filed within the time limits described in subrules 6.05(1) and (3), unless otherwise ordered by a judge of the court.

The Hearing of Applications

Place of Hearing

27.06 The hearing of applications under this rule is governed by rule 6.06.

Evidence on Applications

27.07 Evidence on applications under this rule is governed by rules 6.07 to 6.09.

Abandonment of Applications

27.08 Abandonment of applications is governed by rule 6.10.

Dismissal on Reference or Application

27.09 Dismissal of applications for lack of substantial ground is governed by rule 6.11.

Interventions

27.10 Any person interested in a proceeding between other parties may by leave of the judge presiding over that proceeding, or by leave of the Chief Justice or a judge designated by him or her, intervene therein upon such terms and conditions and with such rights and privileges as the judge, the Chief Justice or his or her designee may determine.

Rule 28 Pre-Hearing Conferences

Application of Rule

28.01 This rule applies to pre-hearing conferences conducted under Section 625.1 of the Criminal Code.

Where Available

28.02 A pre-trial conference shall be held in the country, district or region in which the indictment has been filed, as a judge of the court may direct in accordance with this rule, and at such further dates, times and places as the pre-trial conference judge or another judge of the court may direct.

When Required

General Rule

• 28.03 (1) A pre-trial conference shall be held in accordance with these rules within sixty (60) days of the order to stand trial on which it is based, or, where an indictment has been preferred under Section 577 of the Criminal Code, within sixty (60) days of the Attorney General’s consent or judge’s order, unless otherwise ordered by a judge of the court.

Further Pre-Trial Conferences

• (2) The pre-trial conference judge or another judge of the court may direct that further pre-trial conferences be held in accordance with this rule, where and when the pre-trial conference or other judge directs, to consider any matters that would promote a fair and expeditious trial or other disposition of the case.

• (3) Nothing in these rules shall be construed or interpreted to preclude the pre-trial conference or other judge of the court from conducting, with the consent of the prosecutor and counsel of record for the accused, any other informal pre-trial conferences, in addition to the conference for which s.625.1 provides, upon such terms as the judge considers appropriate.

The Pre-Trial Conference Report

Form of Report

• 28.04 (1) The pre-trial conference report shall be in Form 17.

Completion of Report

• (2) Counsel of record for each accused and the prosecutor assigned to conduct the prosecution, or a prosecutor with authority to bind the prosecutor assigned to conduct the prosecution, shall complete and sign a pre-trial conference report in Form 17, and serve and file the report in accordance with this rule, unless otherwise ordered by a judge of the court, or unless the accused will be pleading guilty and has complied with subrule (4).

• (3) If an accused is self-represented, she or he shall complete and sign a pre-trial conference report in Form 17, and file and serve the report in accordance with this rule, unless the accused will be pleading guilty and has complied with subrule (4).

• (4) Where counsel of record for an accused or a self-represented accused knows that the accused will be pleading guilty on the indictment, counsel or the self-represented accused shall advise the prosecutor and, where required, obtain the prosecutor’s consent to the entry of the plea, at least ten (10) days before the date scheduled for the pre-trial conference, or as soon as counsel has received appropriate instructions about the plea of guilty, as the case may be.

• (5) All counsel must complete their positions on each issue in Form 17, and not indicate “will advise”, “not as yet”, or words of similar effect.

• (6) The prosecutor’s copy of Form 17 shall also include the following information based on the information available to the prosecutor at the time of completion of the pre-trial conference report:

  • (a) a brief synopsis of the allegations, including how the prosecutor intends to prove them;

  • (b) a statement of the prosecutor’s position on sentence if there were to be a plea of guilty prior to trial, including any requirement of a joint submission and plea on certain counts of the indictment;

  and a statement of the prosecutor’s position on sentence upon conviction after trial, including whether dangerous or long-term offender proceedings may be taken in the event of conviction.

Serving and Filing of Report

• (7) Unless otherwise ordered by a judge of the court or where the accused will be pleading guilty, the prosecutor must serve counsel of record for each accused, or where the accused is self-represented, the accused, not later than ten (10) days before the date scheduled for the pre-trial conference.

• (8) Unless otherwise ordered by a judge of the court or where the accused will be pleading guilty, counsel of record for each accused, or the accused if self-represented shall serve the prosecutor, counsel for each co-accused and any other self-represented accused not later than five (5) days before the date scheduled for the pre-trial conference, even if the prosecutor has failed to serve and file Form 17, or otherwise failed to comply with this rule.

• (9) Where the accused will be pleading guilty, the prosecutor shall file a synopsis of the allegations upon which the guilty plea will be based three (3) days prior to the date scheduled for the pre-trial conference.

• (10) Where all counsel will be filing a joint pre-trial conference report, it shall be filed five (5) days before the date scheduled for the pre-trial conference.

Changes of Position

• (11) If either party changes any position taken and recorded on the pre-trial conference report, the party must provide written notice of the change to the other parties and the Superior Court trial coordinator and arrange for a further pre-trial conference as soon as practicable, and serve and file any notices, records, facta, books of authorities or other materials required by these rules.

• (12) Failure to comply with subrule 28.04(11) may result in any application resulting from a change in position not being heard by the trial judge.

Changes Of or To Counsel

• (13) Where new counsel has been retained, an accused who was self-represented has retained counsel or an accused who was represented by counsel is no longer represented by counsel after the pre-trial conference and pre-trial conference reports have been completed, counsel or the self-represented accused shall review the pre-trial conference report filed earlier and notify all parties of any changes in position in accordance with subrule 28.04(11).

Custody and Distribution of Pre-Trial Conference Reports and Materials

• (14) The pre-trial conference reports and any other materials filed for use at the pre-trial conference shall be kept in the custody of the court and not disclosed except in accordance with these rules.

• (15) The pre-trial conference reports and any other materials filed for use at the pre-trial conference or prepared as a result of the pre-trial conference shall be provided to the trial judge, except that all references to the sentencing positions advanced by Crown counsel, the criminal record of the accused and any application relating to evidentiary use of the accused’s criminal record shall be deleted from the materials provided to the trial judge, kept in the custody of the court and only disclosed by order of a judge of the court.

Completion of Report to Trial Judge

• (16) The pre-trial conference judge shall complete a Report to Trial Judge in Form 18-A1, which shall be forwarded to the trial judge not later than ten (10) days prior to the date on which pre-trial applications or the trial is scheduled to commence, as the case may be.

Completion of Report to Trial Coordinator

• (17) The pre-trial conference judge shall complete a Report to Trial Coordinator in Form 18-B at the conclusion of the pre-trial conference and forward this form to the trial coordinator on completion.

Confirmation of Trial Readiness

• (18)(a) In jurisdictions where Trial Readiness Court are held, the pre-trial conference or case management judge or another judge of the court shall direct that counsel or self-represented accused conducting a case shall appear in a trial readiness court unless all counsel and self-represented accused have not changed their position from the position described in the most recent pre-trial conference report, have complied with all filing requirements, and have completed and filed a Trial Readiness Report in Form 18-C1, not later than three (3) business days prior to the Trial Readiness Court unless otherwise directed by the Trial Coordinator.

  • (b) In jurisdictions where trial readiness courts are not held, the pre-trial conference or case management judge or another judge of the court shall direct that counsel and self-represented accused conducting a case shall complete and file a Trial Readiness Report in Form 18-C2 not later than ten (10) business days prior to the date on which pre-trial applications, the trial or the sittings at which the case is scheduled to be heard. If any counsel or self-represented accused has changed his or her position from the position described in the most recent pre-trial conference report, failed to comply with all filing requirements or failed to file a Trial Readiness Report, a judge of the court may direct that a further pre-trial conference or court attendance be required prior to the scheduled date.

The Hearing

General Nature of Pre-Trial Conference

• 28.05 (1) Unless otherwise ordered by the pre-trial conference judge under rule 2.01, a pre-trial conference in a case where all parties are represented by counsel, shall be conducted in a pre-trial conference room, judges’ chambers or other suitable room in the courthouse where a full and frank discussion of the issues raised in the proceedings may take place.

• (2) Where any party is not represented by counsel, the pre-trial conference shall be held in a courtroom closed to the public.

• (3) A pre-trial conference held under subrule (2) shall be recorded and the proceedings not published, broadcast or transmitted in any other way, except by order of the pre-trial conference judge.

• (4) No transcript of any pre-trial conference held under subrule (2) shall be ordered by anyone without notice to all parties and the written approval of the pre-trial conference judge or another judge of the court.

• (5) Where a transcript has been ordered under subrule (4), no information contained in it shall be published in any document or broadcast or transmitted in any way without the approval of the pre-trial conference judge, on notice to all parties.

Attendance at Pre-Trial Conference

• (6) Unless otherwise ordered by the pre-trial conference judge or a judge of the court, counsel of record for each accused, or if the accused is self-represented, the accused, and the prosecutor assigned to conduct the prosecution, or a prosecutor with authority to bind the prosecutor assigned to conduct the prosecution, shall attend the pre-trial conference and be in a position to make commitments on behalf of the party whom each represents on issues reasonably anticipated to arise from the contents of the pre-trial conference reports.

• (7) Unless otherwise ordered by the pre-trial conference judge or a judge of the court an accused who is represented by counsel who has completed a Designation of Counsel in Form 18 is not required to attend the pre-trial conference.

• (8) The pre-trial conference judge or another judge of the court may require that an accused represented by counsel and an investigating officer attend or be available for consultation at the pre-trial conference.

Specific Inquiries to be Made

• (9) The pre-trial conference judge shall inquire about and discuss any matter that may promote a fair and expeditious hearing of the charges contained in the indictment.

• (10) Without restricting the generality of subrule (9) or any other rule, the pre-trial conference judge may inquire about and discuss:

  • (a) the contents of the pre-trial conference reports submitted by counsel or self-represented accused;

  • (b) any issues that arise from the contents of the pre-trial conference reports;

  • (c) the issues in dispute between the parties;

  • (d) the possibility of making admissions of fact or other agreements about uncontested issues or the evidence of witnesses;

  • (e) the simplification of any issues that remain in controversy at trial;

  • (f) the resolution of any outstanding disclosure issues;

  • (g) the nature and particulars of any pre-trial application under these rules including but not only:

    • (i) the necessity to make orders about the notices of application to be filed;

    • (ii) the setting of schedules for serving and filing notices of application, application records and other materials in support of pre-trial applications;

    • (iii) whether factums, other memoranda or written submissions should be required for pre-trial applications and the schedule set for their filing and service;

    • (iv) whether time limits should be imposed for oral arguments of pre-trial applications; and,

    • (v) whether evidence on pre-trial applications may be provided by Agreed Statements of Facts, excerpts of transcripts of the preliminary inquiry, affidavits, “will states” or otherwise than by the testimony of witnesses.

  • (h) the possibility that the parties will consent to a judge other than the trial judge hearing and deciding the pre-trial applications and incorporating any rulings made into the trial record to permit appellate review;

  • (i) the possibility that the prosecutor may reduce the number of counts in the indictment to facilitate jury comprehension and promote a fair, just and expeditious trial;

  • (j) the manner in which evidence may be presented at trial to facilitate jury comprehension;

  • (k) the necessity of the assistance of interpreters for any accused or witness in the proceedings;

  • (l) the necessity of any technological equipment to facilitate the introduction of evidence at trial or jury comprehension of the evidence;

  • (m) the estimated length of pre-trial applications and trial proceedings; and the advisability of fixing a date for commencement of pre-trial applications and trial proceedings.

Resolution Issues

• (11) The pre-trial conference judge shall inquire about and discuss:

  • (a) the prosecutor’s position on sentence before trial and after trial in the event of conviction, including the counts upon which pleas of guilty would be sought, the credit to be given for pre-sentence custody or release on stringent terms, any corollary orders sought upon conviction, and whether further proceedings would be taken upon conviction of any serious personal injury offence as defined in s. 752 of the Criminal Code; and

  • (b) the position of counsel for each accused on sentence, both before and after trial, on the basis that the accused were to instruct counsel that she or he wished to plead guilty, and where guilt was proven after trial.

• (12) The pre-trial conference judge may express his or her opinion about the appropriateness of any proposed sentencing disposition based upon the circumstances disclosed at the pre-trial conference.

Recommendations of Pre-Trial Conference Judge

• (13) The pre-trial conference judge may make recommendations about:

  • (a) admissions of fact or other agreements about uncontested issues or the evidence of witnesses;

  • (b) the resolution of outstanding disclosure issues;

  • (c) the manner in which evidence should be introduced on pre-trial applications and the order in which the applications should be heard;

  • (d) requiring the prosecutor to provide a list of names who will or may be called as witnesses for the prosecution;

  • (e) the filing of notices of applications, application records, factums, other memoranda or written materials for pre-trial applications;

  • (f) the time limits to be imposed on oral argument of pre-trial applications;

  • (g) the appointment of a judge other than the trial judge to hear and determine pre-trial applications;

  • (h) arrangements for persons requiring the assistance of interpreters to meet with proposed interpreters in advance of the commencement of pre-trial applications or trial proceedings to ensure that the interpretation will be satisfactory;

  • (i) any arrangements required to ensure that any technological equipment necessary is available for use as required;

  • (j) the appointment of a case supervision judge under rule 29.02;

  • (k) a trial management conference before the trial judge prior to the date scheduled for pre-trial applications or trial, as the case may be; and,

  • (l) the appointment of a case management judge under rules 29A or 29B.

Rule 29 Case Supervision Judges and Conferences

Authority for Rule

29.01 This rule is made under the authority of s. 482.1(1) of the Code.

Designation of Case Supervision Judge

General Rule

• 29.02 (1) The Regional Senior Judge, or a judge designated by him or her, on the recommendation of the pre-trial conference judge or otherwise, may assign a case supervision judge to any case to be tried or otherwise determined in the Region.

Criteria for Designation of Case Supervision Judge

• (2) In considering whether to assign a case supervision judge to any proceeding, the Regional Senior or designated judge shall take into account all the relevant circumstances, including, but not limited to:

  • (a) the recommendation of the pre-trial conference judge;

  • (b) the purpose of case supervision;

  • (c) the complexity of the proceeding, including issues of fact and law involved in any pre-trial applications;

  • (d) the importance to the parties and the administration of justice of the issues of fact and law raised in the proceedings;

  • (e) the number of parties involved in the proceedings and whether all parties are represented by counsel;

  • (f) the number of proceedings involving the same or related parties;

  • (g) the nature and extent of intervention by the case supervision judge that the proceedings are likely to require;

  • (h) the time reasonably required for any pre-trial applications in the proceedings;

  • (i) the time reasonably required for completion of the proceeding;

  • (j) the number of witnesses likely to testify in the proceeding; and,

  • (k) any other factors that the judge considers relevant.

Assistance with Administrative Matters

29.03 The case supervision judge may designate personnel of the court to deal with administrative matters relating to proceedings out of court, provided any accused affected by those matters is represented by counsel.

Case Supervision Conferences

29.04 The case supervision judge may schedule and convene a case supervision conference from time to time, on his or her own initiative or at the request of a party, to ensure efficient case supervision and the orderly and expeditious conduct of the proceedings.

Attendance at Case Supervision Conference

General Rule

• 29.05 (1) Unless otherwise ordered by the case supervision judge, counsel of record for each accused, or if the accused is self-represented, the accused, and the prosecutor assigned to conduct the proceedings shall attend the case supervision conference, be fully acquainted with the factual and legal issues likely to arise at the conference and be in a position to make decisions that bind the party during the proceedings.

Accused Represented by Counsel

• (2) Unless otherwise ordered by the case supervision judge, an accused who is represented by counsel who has completed a Designation of Counsel in Form 18 is not required to attend a case supervision conference.

Requirement of Presence

• (3) The case supervision judge may require that an accused represented by counsel and an investigating officer be present or available for consultation at the case supervision conference.

The Case Supervision Conference

General Nature of the Case Supervision Conference

General Rule

• 29.06 (1) Unless otherwise ordered by the case supervision judge, a case supervision conference in proceedings where all parties are represented by counsel, shall be conducted in the case supervision or pre-trial conference room, judges’ chambers or other suitable rooms in the courthouse.

Self-Represented Accused

• (2) Where any party to a proceeding in which a case supervision conference is held is not represented by counsel, the case supervision conference shall be held in accordance with subrules 28.04(2) to (5).

Specific Authority of the Case Supervision Judge

• (3) The case supervision judge may:

  • (a) establish or revise any schedule for pre-trial applications, trial or other proceedings;

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

  • (c) secure the parties’ agreement or give directions about the manner in which evidence will be presented on pre-trial or other preliminary applications;

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

  • (e) secure the parties’ agreement or give directions about the manner in which decisions made by a judge other than the trial judge on pre-trial or other preliminary 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-trial or other preliminary applications;

  • (g) establish a schedule for the service and filing of any materials required for any pre-trial or other preliminary 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 trial to assist its comprehension by jurors;

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

  • (m) recommend the appointment of a case management judge under rule 29A or 29B.

Role of Trial Judge

• (4) Any directions given by the case supervision judge are subject to revision by the judge presiding in the proceedings according to the best interests of the administration of justice.

Rule 29A The Appointment of a Case Management Judge[Code, ss. 551.1 to 551.6]

Authority for Rule

29A.01 The appointment of a Case Management Judge under the Code shall be governed by sections 551.1 to 551.6 of the Code and rules 29A.02 to 29A.06.

Appointment by Notice of Application

29A.02 Where a party seeks the appointment of a Case Management Judge pursuant to section 551.1 of the Code, he or she must serve and file a Notice of Application briefly setting out:

• (a) why the appointment would be “necessary for the proper administration of justice” in the case, and,

• (b) the jurisdiction the Case Management Judge may exercise in the case having regard to section 551.3 of the Code.

Service of Notice of Application

29A.03 The Notice of Application must be served on:

• (a) counsel, on behalf of all the parties in the case in which the application is being brought, and,

• (b) the accused, where the accused does not have counsel of record in the case in which the application is being brought,

and must also be filed with the trial coordinator, at least one clear day before the pre-trial conference or case supervision conference at which the issue of the appointment will be raised.

Judge May Require One Party to Prepare Application

29A.04 Where no Notice of Application has been filed and the pre-trial or case supervision judge and at least one party agree that a Case Management Judge should be appointed, the judge may require one party to prepare the Notice of Application.

Waiver of Notice of Application Requirement

• 29A.05 (1) Where no Notice of Application has been filed, the judge conducting the pre-trial conference or case supervision conference may waive compliance with the Notice of Application requirement where:

  • (a) the judge is the Regional Senior Judge, or,

  • (b) his or her designate for the appointment of a Case Management Judge.

• (2) Where subrule (1) applies, the presiding judge shall endorse the indictment or prepare a separate endorsement setting out:

  • (a) why the appointment is “necessary for the proper administration of justice”, and,

  • (b) the jurisdiction of the Case Management Judge is permitted to exercise in the case having regard to section 551.3 of the Code.

Service to Regional Manager of Judicial Services

29A.06 A copy of the Notice of Application, or a copy of the endorsement where subrule 29A.05(2) applies, shall be provided by the pre-trial or case supervision judge to the Regional Manager of Judicial Services.

Rule 29B The Appointment of a Judge to Determine Issues that Are to be Adjudicated in Related Trials[Code, s. 551.7]

Authority for Rule

29B.01 The appointment of judges to determine issues that are to be adjudicated in related trials shall be governed by section 551.7 of the Code and rules 29B.02 to 29B.08.

Appointment by Notice of Application

29B.02 Where a party seeks the appointment of a judge to determine issues that are to be adjudicated in related trials pursuant to section 551.7 of the Criminal Code, he or she must serve and file a Notice of Application briefly setting out:

• (a) why the appointment would be “in the best interests of the administration of justice, including ensuring consistent decisions”;

• (b) the “common issues” that would be adjudicated by the judge;

• (c) the related trials;

• (d) the jurisdiction in which those prosecutions were commenced; and,

• (e) whether there has been a committal for trial in the other trials.

Service of Notice of Application

• 29B.03 (1) The Notice of Application must be served on:

  • (a) counsel, on behalf of all the parties in the case in which the application is being brought, and,

  • (b) the accused, where the accused does not have counsel of record in the case in which the application is being brought,

  and must also be filed with the trial coordinator at least five days before the pre-trial conference or case supervision conference at which the issue of the appointment will be raised.

• (2) The Notice of Application must also be served on:

  • (a) all counsel in the related cases, and

  • (b) all accused where the accused does not have counsel of record in the related cases,

  and must be filed with the trial coordinator at least five days before the pre-trial conference or the case supervision conference at which the issue of the appointment will be raised.

Judge May Require One Party to Prepare Application

29B.04 Where no Notice of Application has been filed and the pre-trial or case supervision judge or a party seek the appointment of a judge to adjudicate the issues in related trials, the judge may:

• (a) require one party to prepare the Notice of Application, and,

• (b) give directions with respect to service on counsel or any accused who do not have counsel of record in the related proceedings.

When the Related Trials Are in the Same Region

29B.05 Where all related trials are in the same region of the Superior Court of Justice, the Regional Senior Judge or his or her designate shall determine whether a judge should be appointed to adjudicate the issues in related trials.

Where the Related Trials Are in Different Regions

29B.06 Where one or more of the related trials are in different regions of the Superior Court of Justice, the application shall be made to the Chief Justice or a judge designated by the Chief Justice to determine the issue.

Waiver of Notice of Application Requirement

• 29B.07 (1) Where no Notice of Application has been filed, the judge conducting the pre-trial conference or case supervision conference may waive compliance with the Notice of Application requirement where:

  • (a) all parties are represented at the pre-trial or case supervision conference,

  • (b) the judge is the Regional Senior Judge, or,

  • (c) the judge is the Regional Senior Judge’s designate for the appointment of judges to adjudicate the issues in related trials.

• (2) Where subrule (1) applies, the presiding judge shall endorse the indictment or prepare a separate endorsement setting out:

  • (a) why the appointment is “in the interests of justice, including ensuring consistent decisions”, and,

  • (b) the issues to be adjudicated by the appointed judge after receiving input from all parties in the related proceedings.

Service to Regional Manager of Judicial Services

29B.08 A copy of the Notice of Application, or a copy of the endorsement where subrule 29B.07(2) applies, shall be provided by the pre-trial or case supervision judge to the Regional Manager of Judicial Services.

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

Rule 30 Applications to Admit Evidence

30.01 This rule applies where a party to a proceeding seeks to have evidence admitted that a common law rule or other rule of admissibility renders presumptively inadmissible, including but not only:

• (a) evidence of disreputable conduct by an accused, other than the conduct charged in the indictment;

• (b) evidence of similar acts, whether included as other counts or not;

• (c) evidence of a witness whose competence is governed by Section 4 of the Canada Evidence Act; and,

• (d) evidence of a witness whose testimony, in whole or in part, is subject to a privilege.

To Whom Made

General Rule

• 30.02 (1) An application to admit evidence that a common law or other rule of admissibility renders presumptively inadmissible shall be made to the judge who is scheduled to preside or is presiding in the proceedings in which the evidence is tendered for admission.

Exception

• (2) Despite subrule (1), where the parties expressly agree that applications to admit evidence may be heard and determined by a judge other than the trial judge, and that rulings made on these applications will be incorporated into the record of the proceedings in which the evidence is tendered for admission, the pre-trial conference or case management judge may make an order to give effect to the parties’ agreement and the applications may be heard and determined by a judge other than the designated trial judge.

Requirement of Notice

Form of Notice

• 30.03 (1) Applications to admit evidence under this rule shall be commenced by a notice of application in Form 1.

Contents of Notice

• (2) The notice of application in Form 1 shall state:

  • (a) the place and date of hearing as determined in accordance with these rules;

  • (b) a detailed description of the presumptively inadmissible evidence the applicant seeks to introduce in the proceedings;

  • (c) a precise, case-specific statement of the basis and grounds upon which the evidence is said to be admissible;

  • (d) a detailed summary of the evidence or other material upon which the party seeking admission relies, and a statement of the manner in which the applicant proposes to introduce the evidence;

  • (e) an estimate of the time required to introduce the evidence and other material to be relied upon in support of the application; and,

  • (f) whether any order is required abridging or extending any times established by the pre-trial conference or case management judge or required for service and filing by this rule.

Filing and Service of Notice

General Rule

• 30.04 (1) Any party who seeks to have evidence admitted under this rule shall give the notice required by rule 30.03 not less than thirty (30) days before the day first scheduled for the hearing of the pre-trial motions or trial, as the case may be, unless otherwise ordered by a judge under these rules.

Manner of Service

• (2) Where the applicant is the prosecutor, service of the notice of application in Form 1 and any other supporting materials required by these rules or ordered by a judge shall be made in accordance with rule 5. Where the applicant is an accused, whether self-represented or represented by a solicitor of record, the notice and supporting materials shall be served on the office of the prosecutor having carriage of the proceedings.

Filing of Proof of Service

• (3) The notice of application in Form 1 and any other supporting materials required by these rules or ordered by a judge, together with proof of service, shall be filed in the office of the clerk of the court in the place where the application is to be heard, not later than thirty (30) days before the day first scheduled for the hearing of the pre-trial motions or trial, as the case may be unless otherwise ordered by a judge of the court.

Materials for Use on Application

Application Record

• 30.05 (1) In addition to any other materials that may be required by these rules or by order of a judge of the court, an applicant under this rule shall include in an application record:

  • (a) the notice of application in Form 1;

  • (b) a copy of the indictment to which the application relates;

  • (c) legible copies of any reproducible materials relied upon in support of the application where it is proposed to argue the case for admissibility in whole or in part on a basis other than the testimony of witnesses;

  • (d) where it is proposed to argue the case for admissibility in whole or in part on the basis of testimony of witnesses, legible copies of prior statements or statements of anticipated evidence in sufficient detail to show the essential features of the evidence proposed for admission; and,

  • (e) any other materials that may reasonably assist the judge in identifying and determining the admissibility issues raised.

Respondent’s Application Record

• (2) Where the respondent seeks to rely on material other than that filed by the applicant, the respondent shall file a respondent’s application record and any other materials on which the respondent proposes to rely.

Books of Authorities

• (3) Books of authorities shall be served and filed in accordance with rule 32, unless otherwise ordered by a judge of the court.

Factums

• (4) Factums are not required for applications made under this rule, unless otherwise ordered by a judge of the court.

• (5) Where a judge orders that factums be served and filed on an application under this rule, the factums shall comply with rule 33, unless otherwise ordered by a judge of the court.

Rule 31 Applications to Exclude Evidence

31.01 This rule applies where a party seeks to exclude evidence that is presumptively admissible at common law for all issues that it is reasonably foreseeable another party will seek to introduce in the proceedings, including but not only:

• (a) evidence of prior criminal convictions of an accused;

• (b) evidence of after-the-fact or post-offence conduct; and,

• (c) evidence alleged to have been obtained by constitutional infringement exclusion of which is sought under Section 24(2) of the Charter.

To Whom Made

General Rule

• 31.02 (1) An application to exclude evidence that is presumptively admissible shall be made to the judge who is scheduled to preside or is presiding in the proceedings in which the evidence is tendered for admission.

Exception

• (2) Despite subrule (1), where the parties expressly agree that applications to exclude evidence may be heard and determined by a judge other than the trial judge and that rulings made on these applications will be incorporated into the record of the proceedings in which the evidence is tendered for admission, the pre-trial conference or case management judge may make an order to give effect to the parties’ agreement and the applications may be heard and determined by a judge other than the designated trial judge.

Requirement of Notice

Form of Notice

• 31.03 (1) Applications to exclude evidence under this rule shall be commenced by a notice of application in Form 1.

Contents of Notice

• (2) The notice of application in Form 1 shall state:

  • (a) the place and date of hearing as determined in accordance with these rules;

  • (b) a detailed description of the presumptively admissible evidence the applicant seeks to exclude in the proceedings;

  • (c) a precise, case-specific statement of the basis and grounds upon which the evidence is said to be inadmissible;

  • (d) a detailed summary of the evidence or other material upon which the party seeking exclusion relies and a statement of the manner in which the applicant proposes to introduce the evidence;

  • (e) an estimate of the time required to introduce the evidence and other material to be relied upon in support of the application; and,

  • (f) whether any order is required abridging or extending any times established by the pre-trial conference or case management judge or required for service and filing by this rule.

Filing and Service of Notice

General Rule

• 31.04 (1) Any party who seeks to have evidence excluded under this rule shall give the notice required by rule 31.03 not less than thirty (30) days before the day first scheduled for the hearing of the pre-trial motions or trial, as the case may be, unless otherwise ordered by a judge under these rules.

Manner of Service

• (2) Service of the notice of application in Form 1 and any other supporting materials required by these rules or ordered by a judge shall be made in accordance with rule 5.

Filing of Proof of Service

• (3) The notice of application in Form 1 and any other supporting materials required by these rules or ordered by a judge, together with proof of service, shall be filed in the office of the clerk of the court in the place where the application is to be heard, not later than thirty (30) days before the day first scheduled for the hearing of the pre-trial motions or trial, as the case may be unless otherwise ordered by a judge of the court.

Materials for Use on Application

Application Records

• 31.05 (1) In addition to any other materials that may be required by these rules or by order of a judge of the court, an applicant under this rule shall include in an application record:

  • (a) the notice of application in Form 1;

  • (b) a copy of the indictment to which the application relates;

  • (c) legible copies of any reproducible materials relied upon in support of the application where it is proposed to argue the case for exclusion in whole or in part on a basis other than the testimony of witnesses;

  • (d) where it is proposed to argue the case for exclusion in whole or in part on the basis of testimony of witnesses, legible copies of prior statements or statements of anticipated evidence in sufficient detail to show the essential features of the evidence proposed for admission; and,

  • (e) any other materials that may reasonably assist the judge in identifying and determining the admissibility issues raised.

Respondent’s Application Record

• (2) Where the respondent seeks to rely on material other than that filed by the applicant, the respondent shall file a respondent’s application record and any other materials on which the respondent proposes to rely.

Books of Authorities

• (3) Books of authorities shall be served and filed in accordance with rule 32, unless otherwise ordered by a judge of the court.

Factums

• (4) Factums are not required for applications made under this rule, unless otherwise ordered by a judge of the court.

• (5) Where a judge orders that factums be served and filed on an application under this rule, the factums shall comply with rule 33, unless otherwise ordered by a judge of the court.

Rule 32 Books of Authorities

• 32.01 (1) Books of authorities shall be served and filed by the applicant not later than thirty (30) days before the day first scheduled for the hearing of pre-trial applications or trial, as the case may be, unless otherwise ordered by a judge of the court under these rules.

Respondent’s Authorities

• (2) Where factums are required, books of authorities shall be served and filed by the respondent not later than ten (10) days before the first day scheduled for the hearing of pre-trial applications or trial, as the case may be, and where factums are not required, not later than five (5) days before the same date, unless otherwise ordered by a judge of the court under these rules.

Authorities Included

• (3) The books of authorities shall contain only those authorities that the parties intend to refer to in oral argument.

Marking of Authorities

• (4) The portions of the authorities to which reference may be made in oral argument shall be highlighted or sidebarred.

Legibility of Authorities

• (5) The copies of the authorities shall be legible and may be printed on both sides of each page.

Duplication of Authorities

• (6) A party shall not duplicate authorities filed by any other party.

Colour of Cover

• (7) The book of authorities shall be bound front and back in coloured stock of the same colour as the party’s factum, or as the factum would be if filed.

Rule 33 Factums

• 33.01 (1) Where a judge orders or these rules require that factums be filed, each party shall serve and file a factum, to be entitled and described on its cover as “Applicant’s Factum”, “Respondent’s Factum”, or as the case may be.

Factum to be Signed and Dated

• (2) A factum shall be signed by counsel of record or on counsel’s behalf by someone specifically authorized to do so, or by the applicant or respondent if self-represented and the signature shall be followed by the typed name of counsel, if any, and the date.

Contents of Applicant’s Factum

• (3) The applicant’s factum shall consist of the following parts:

  • (a) Part I, with the caption, “Statement of the Case”, containing a brief but specific summary of the evidence to which the application relates, together with a statement, with reasonable particularity, of the grounds upon which admission or exclusion is made;

  • (b) Part II, with the caption, “Summary of the Facts”, containing a concise summary of the facts relevant to the issues in the application;

  • (c) Part III, with the caption, “Issues and Law”, containing a statement of each issue raised, immediately followed by a concise statement of the law and the authorities relating to that issue;

  • (d) Part IV, with the caption, “Order Requested”, containing a statement of the order that the court will be asked to make;

  • (e) Schedule A, with the caption, “Authorities to be Cited”, containing a list of the authorities referred to in the factum, together with citations, in the order in which they appear in Part III or in alphabetical order; and

  • (f) Schedule B, with the caption, “Relevant Legislative Provisions”, containing the text of all relevant statues except any provisions of the Constitution Act, Criminal Code and Youth Criminal Justice Act.

  in paragraphs consecutively numbered throughout the factum.

Contents of Respondent’s Factum

• (4) The respondent’s factum shall consist of the following parts:

  • (a) Part I, with the caption, “Respondent’s Statement of the Facts”, containing a statement of the facts in Part II of the applicant’s factum that the respondent accepts as correct or substantially correct, and those facts with which the respondent disagrees, along with a concise summary of any additional facts upon which the respondent relies;

  • (b) Part II, with the caption, “Response to Applicant’s Issues”, containing the respondent’s position on 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, with the caption, “Additional Issues”, and containing 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, with the caption, “Order Requested”, containing a statement of the order that the respondent will ask the court to make;

  • (e) Schedule A, with the caption, “Authorities to be Cited”, containing a list of the authorities referred to in the factum, together with citations in the order in which they appear in Part II and Part III, or in alphabetical order; and

  • (f) Schedule B, with the caption, “Relevant Legislative Provisions”, containing the text of all relevant statutes, except any provisions of the Constitution Act, Criminal Code and Youth Criminal Justice Act,

  in paragraphs consecutively numbered throughout the factum.

Contents of Intervenor’s Factum

• (5) Every intervenor shall prepare and file an “Intervenor’s Factum” that 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, or in alphabetical order,

  in paragraphs numbered consecutively throughout the factum.

Length of Factum

• (6) Unless ordered otherwise by a judge, Parts I through IV of the factum, inclusive, shall not exceed twenty (20) pages in length.

Form of Factum

• (7) The applicant’s factum shall be bound front and back in blue cover stock, the respondent’s factum shall be bound front and back in green cover stock and the intervenor’s factum shall be bound front and back in grey cover stock.

• (8) The factum shall be printed on good quality white paper 216 millimeters by 279 millimeters in size and the text shall be printed, typewritten, written or reproduced legibly on one side only with double spaces between the lines, except for quotations which may be single spaced, and margins of approximately forty millimeters on the left-hand side.

• (9) The characters used shall be at least 12 point or 10 pitch size.

• (10) Back sheets and covers shall be of 176g/m² cover stock.

• (11) The Registrar may refuse to accept a factum which does not comply with these rules, and in that case, the factum shall not be filed without a direction from a judge.

Service and Filing of Factums

• (12) Unless otherwise ordered by a judge, the applicant’s factum shall be served and filed in accordance with rule 5 not later than thirty (30) days before the day first scheduled for the hearing of the pre-trial applications or the trial as the case may be.

• (13) Unless otherwise ordered by a judge, the respondent’s factum shall be served and filed in accordance with rule 5 not later than ten (10) days before the day first scheduled for the hearing of the pre-trial applications or the trial as the case may be.

• (14) Unless otherwise ordered by a judge, an intervenor’s factum shall be served and filed in accordance with rule 5 not later than five (5) days before the day scheduled for the hearing of the application to which it relates.

Rule 34 Hearing of Pre-Trial and Other Applications

Order and Manner of Applications

34.01 The presiding judge shall determine the order in which pre-trial and other applications shall be heard and the manner in which the evidence in support of any application shall be presented.

Preliminary Assessment of Application

34.02 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

34.03 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

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

Written Argument

34.05 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

35.01 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.

Pre-Hearing Conference Report Form

• 35.02 (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.

Case Supervision Required

• 35.03 (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.

Powers of Case Supervision Judge

35.04 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

40.01 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

40.02 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

• 40.03 (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.

Form of Notice of Appeal

Inmate appeals

• 40.04 (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

• 40.05 (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

• 40.06 (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.

Processing Appeals

• 40.07 (1) Upon receipt of a notice of appeal, the clerk of the appeal court shall forthwith transmit a copy of it to the clerk of the trial court in the region or county in which adjudication was made.

Transmission of Exhibits and Documents

• (2) Upon receipt of a notice of appeal, the clerk of the trial court, unless it is otherwise ordered by a judge, shall transmit forthwith to the clerk of the appeal court all documents and exhibits which were before the trial court, including the information, all notices of motion or applications, motion records and facta.

• (3) Notwithstanding subrule (2), currency, valuable securities, jewellery, narcotics and exhibits which are inherently dangerous (as for example, explosives) shall not be transmitted to the clerk of the appeal court unless material to the issues raised on appeal and a judge so orders.

Transmission of Copy

• (4) It shall be sufficient under subrule (2) for the clerk of the trial court to transmit to the clerk of the appeal court a certified copy of the information upon which trial proceedings took place, unless otherwise ordered by a judge.

• (5) Upon receipt of the documents and exhibits from the trial court, the clerk of the appeal court shall make a copy of all the documents and exhibits that are capable of reproduction, and notify the appellant that they are available to be included in the appeal book to be prepared by counsel pursuant to rule 40.10.

• (6) Where the exhibits transmitted are voluminous, the clerk of the appeal court may notify the parties to the appeal that an application for directions will be made to a judge regarding the exhibits, pursuant to subrule 40.03(2).

Transcripts and Agreements Respecting Evidence

Certificate Respecting Evidence

• 40.08 (1) Except in the case of appeals to which subrules (3) and (4) apply, appeals in which counsel will be filing an agreed statement of fact in relation to the evidence pursuant to subrule 40.08(6) or (7) as the case may be, or where otherwise directed by the clerk of the appeal court, the appellant shall, at the time the notice of appeal is filed, furnish a certificate in Form 2C from each court reporter who took the evidence stating that copies of the transcript as required by these rules have been ordered.

• (2) Where the appellant is unable to obtain a certificate in Form 2C from each court reporter by the time of filing the notice of appeal, the appellant may file the notice of appeal, the certificates in Form 2C that have been obtained and written confirmation that all other transcripts have been ordered. Where all certificates in Form 2C are not filed at the time the notice of appeal is filed, the appellant shall file the outstanding certificates in Form 2C within 30 days of filing the notice of appeal.

Where Provisional Certificate Granted

• (3) Where an appellant has been granted a provisional certificate under the Legal Aid Services Act, 1998 which is limited to the filing of a notice of appeal or to the filing of a notice of appeal and the making of an application for release from custody pending appeal, the counsel of record acting under such certificate may file the notice of appeal without ordering the transcript, but when a legal aid certificate authorizing the carrying on of the appeal is granted, the counsel shall furnish the certificates required under subrule (1) within 15 days from the granting of such legal aid certificate, subject to subrule 40.08(2).

Where No Provisional Certificate Granted

• (4) Where an appellant has applied for a certificate under the Legal Aid Services Act, 1998, but no provisional certificate has been granted, he or she shall file, at the time of filing the notice of appeal, proof of such application, and may lodge the notice of appeal without ordering the transcript or filing certificates of the court reporter, but when a legal aid certificate authorizing the carrying on of the appeal is granted, the counsel shall furnish the certificates required under subrule (1) within 15 days from the granting of such legal aid certificate subject to subrule 40.08(2).

• (5) Within 15 days of receipt of the final decision of the area committee refusing the issuance of a legal aid certificate, the appellant shall furnish the certificates required under subrule (1).

Agreed Statements of Fact

• (6) In appeals under s. 813 of the Code, where the facts are not in dispute, an agreed statement of facts served and filed within 30 days of the filing of the notice of appeal may take the place of the transcript of trial evidence.

• (7) In appeals under s. 830 of the Code, where the facts are not in dispute, an agreed statement of facts served and filed within 15 days of the filing of the notice of appeal pursuant to subsection 830(2) of the Code may take the place of the transcript of trial evidence.

• (8) Despite subrules (6) and (7), where an agreed statement of facts has been served and filed, the appellant must serve and file a transcript of the reasons for judgment, reasons for sentence, and full submissions and any ruling pertaining to the issues under appeal, and if there is an appeal of the sentence, all submissions and evidence called at the sentencing hearing.

• (9) Where the appellant intends to file an agreed statement of fact, counsel may serve and file a written notification that they intend to do so at the time of filing the notice of appeal, without filing a Certificate in Form 2C.

• (10) Where the parties have not filed an agreed statement of fact within 45 days of filing the notice of appeal pursuant to s. 813 of the Code, the appellant must serve and file a Certificate in Form 2C within 60 days of filing the notice of appeal unless otherwise ordered by a judge.

• (11) Where the parties have not filed an agreed statement of fact within 15 days of filing the notice of appeal pursuant to s. 830 of the Code, the appellant must serve and file a Certificate in Form 2C within 30 days of filing the notice of appeal unless otherwise ordered by a judge.

• (12) Where the appellant cannot comply with the 15-day period mentioned in subrule (7), and applies for an extension of time under rule 3.02, the judge hearing the application or determining the application in chambers on consent shall consider whether the 15-day period mentioned in subrule (7) is reasonable in the circumstances, and whether the proper administration of justice would benefit if this period were to be extended.

Contents of Transcripts for Conviction Appeals

• (13) Unless otherwise ordered by a judge in accordance with rule 2.01, there shall be omitted from all transcripts of evidence:

  • (a) all opening remarks by the prosecutor;

  • (b) all argument on pre-trial motions or applications made at trial, excepting a notation that an application or motion was made (the ruling of the summary conviction court shall be transcribed), unless a ground of appeal to be argued relates to the pre-trial motion or application, in which case the transcript of the argument must be included in the transcript;

  • (c) all objections to the admissibility of evidence, excepting a notation that the objection was made (the ruling of the summary conviction court shall be transcribed), unless a ground of appeal to be argued relates to the ruling on the admissibility of evidence, in which case the transcript of the argument must be included in the transcript; and,

  • (d) the closing argument of the parties, their agent(s) or counsel unless a ground of appeal involves the reasons for judgment including, but not limited to grounds alleging an unreasonable verdict, misapprehension of evidence, a failure to properly apply the judgment in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.), a failure to consider relevant evidence and the inadequacy of the reasons given.

Additional Portions of Transcript

• (14) An order for the inclusion in the transcript of any portion of the proceedings referred to in subrule (13) may be made without the attendance of counsel of record, upon filing the written consent of counsel of record for all parties.

• (15) Any order for the inclusion in the transcript of any portion of the proceedings referred to in subrule (13) shall be sent to the court reporter within 5 days of the order having been granted, and a copy of the order shall be provided to the counsel of record for all parties, together with confirmation that the order has been sent to the court reporter.

• (16) Everything that occurred following a finding of guilt shall be transcribed for use on the hearing of the appeal whether the appeal is against the finding of guilt or conviction and sentence or is against the sentence only.

Contents of Transcripts for Appeals against Sentence

• (17) With respect to appeals as to sentence only:

  • (a) where there was a plea of guilty at the opening of trial before any evidence was taken, the transcript shall include the entire proceedings before the court, including the statement of the prosecutor, any evidence as to the facts, any submissions of the prosecutor for the Crown or the counsel for defence, and the reasons of the summary conviction court as to sentence;

  • (b) where the original plea was one of not guilty, and was followed by the adducing of evidence, unless otherwise ordered by a judge, the parties shall make every effort to agree on a statement of facts in accordance with subrule (6) or (7) as the case may be. Where the appellant cannot comply with the time limits set out in subrule (6) or (7) as the case may be, the appellant may seek an extension of the time pursuant to rule 3.02; and

  • (c) in the event of difficulty in settling the statement of facts, counsel for either party may, on notice, attend upon a judge in chambers for assistance. In the event of a failure to agree as to the facts, the provisions of subrules (1) and (10) to (12) apply.

Completion of Transcripts

• (18) Upon signing a certificate, each court reporter shall proceed with reasonable diligence to prepare and certify the transcript. All transcripts shall be prepared no longer than 90 days after the date the transcript was ordered.

• (19) If the transcript has not been completed within 90 days from the date the transcript was ordered, the court reporter shall notify the parties to the appeal and the clerk of the appeal court, in writing, of the reason for the delay, and the date upon which the transcript will be prepared forthwith.

• (20) Upon completion of the transcript, the court reporter shall forthwith notify the parties to the appeal and the clerk of the appeal court, in writing, that the transcript has been completed, by filing a Certificate in Form 2D, which shall include the date(s) to which the transcript relates.

• (21) The Appellant shall serve on the respondent and all other parties to the appeal, and file together with proof thereof, a copy of the transcript within 30 days of receipt of a Certificate in Form 2D from each court reporter responsible for preparing a portion of the transcript.

• (22) Unless an appeal has been wholly abandoned, after a transcript has been ordered, the completion of the transcript shall not be suspended nor the order countermanded except pursuant to an order of a judge made in accordance with rule 2.01.

Costs Sanction for Unnecessary Evidence

• (23) In considering whether to award costs on an appeal under section 826 or subsection 834(1) of the Code, a judge may consider whether evidence has been transcribed or exhibits reproduced unnecessarily.

Amendment of Notice of Appeal

Supplementary Notice to be Served and Filed

• 40.09 (1) A notice of appeal may be amended without leave, before the appellant’s factum has been filed, by serving on the parties on whom the notice was served a supplementary notice of appeal in Form 2A and filing it with proof of service.

Argument Limited to Grounds Stated

• (2) No grounds other than those stated in the notice of appeal or supplementary notice of appeal may be relied on at the hearing of the appeal, except with leave of the judge hearing the appeal.

Relief Limited

• (3) No relief other than that sought in the notice of appeal or supplementary notice of appeal may be sought at the hearing, except with the leave of the judge hearing the appeal.

Appeal Books

Service and Filing

• 40.10 (1) The appellant, within 15 days after receiving notice that the transcript of evidence is ready, or where a transcript of evidence is not required on appeal, within 30 days after filing the notice of appeal, shall, unless otherwise ordered by a judge, serve on the respondent and any person entitled by order of a judge to be heard on the appeal, a copy of an appeal book and, at such time, shall file proof of service of the appeal book and a legible copy of the appeal book.

Where the appellant is not represented by counsel

• (2) Where the appellant is not represented by counsel, a judge may require the respondent to prepare the appeal book.

Contents of Appeal Book

• (3) The appeal book shall contain, in consecutively numbered pages arranged in the following order, a copy of:

  • (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) the notice of appeal and any supplementary notice of appeal;

  • (c) any direction or order made with reference to the appeal;

  • (d) the information, including all endorsements thereon or as adjuncts thereto;

  • (e) the formal order or decision appealed from, as signed and entered, if any;

  • (f) the reasons for judgment, if not included in the transcript of proceedings;

  • (g) any order for release from custody pending appeal;

  • (h) all documentary exhibits filed at the trial that the parties have not agreed to omit, arranged in order by date or, where there are documents having common characteristics, arranged in separate groups in order by date;

  • (i) all notices of application filed at or before the trial;

  • (j) all maps, plans, photographs, drawings and charges that were before the summary conviction court and are capable of reproduction that the parties have not agreed to omit;

  • (k) the agreed statement of facts, if any;

  • (l) where there is an appeal as to sentence, the pre-sentence report, the criminal record of the appellant, and any exhibits filed on the sentencing proceedings;

  • (m) the certificates respecting evidence referred to in subrule 40.08(1).

Non-Compliance with Rules

• (4) The clerk of the appeal court may refuse to accept an appeal book which does not comply with this rule or is not legible and the appeal book shall not be filed except by leave of a judge.

Relief from Compliance

• (5) Where compliance with this rule would cause undue expense or delay, a judge may give special directions.

Facta

General Requirement

• 40.11 (1) Except in appeals in writing under rule 40.15 or except where a judge has made an order under subrule 40.03(2), all parties to the appeal and persons who have been granted the right to be heard shall deliver a factum to be entitled and described on its cover as “Appellant’s Factum”, “Respondent’s Factum”, “Intervenor’s Factum”, or as the case may be.

Signatures

• (2) All facta shall be signed by a counsel or on a counsel’s behalf by someone specifically authorized to do so or, where a party is not represented by counsel, by the appellant or respondent, as the case may be, and the signature shall be followed, where applicable, by the typed name of the counsel.

Non-Compliance with Rules

• (3) The clerk of the appeal court may refuse to accept a factum which does not comply with this rule as to timing, form or content or is not legible and the factum shall not be filed except by leave of a judge.

Appellant’s Factum

• (4) An appellant shall prepare an “Appellant’s Factum” not exceeding 20 numbered pages in length, excluding the schedule referred to in paragraph (5)(f) and, within 90 days of receiving the Court Reporter’s Completion Certificate under subrule 40.08(20), shall file a copy, together with proof of service thereof, on all other parties and persons who have been granted the right to be heard on the appeal.

• (5) Except in appeals from sentence only, the appellant’s factum shall consist of:

  • (a) Part I, entitled “Statement of the Case”, which shall contain a statement identifying the appellant, the court in which the proceedings arose, the nature of the charge or charges, the result in that court and the nature of each order to which the appeal relates;

  • (b) Part II, entitled “Summary of the Facts”, which shall contain a concise summary of the facts relevant to the issues on the appeal, with such references to the 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;

  • (e) Part V, entitled “Time Estimates”, which shall contain the appellant’s time estimate for oral submissions for:

    • (i) each appellant,

    • (ii) each respondent, and,

  • (f) 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

• (6) A respondent shall prepare a “Respondent’s Factum” not exceeding 15 numbered pages in length, excluding the schedule referred to in paragraph (7)(f), and shall file, not later than 10 days before the week the appeal is scheduled to be heard, a copy, together with proof of service thereof on all other parties and persons who have been granted the right to be heard on the appeal.

• (7) Except in appeals from sentence only, 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 appellant’s factum that the respondent accepts as correct and those facts with which the respondent disagrees and a concise summary of any additional facts relied on, with such reference to the transcript evidence by page and line or paragraph, as the case may be, as is necessary;

  • (b) Part II, entitled “Response to Appellant’s Issues”, which shall contain the position of the respondent with respect to each issue raised by the appellant, 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;

  • (e) Part V, entitled “Time Estimates”, which shall contain the respondent’s time estimates for oral submissions for:

    • (i) each respondent,

    • (ii) each appellant, and

  • (f) 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.

• (8) The facta shall be printed on good quality white paper 216 millimetres by 279 millimetres in size, and the text shall be printed, typewritten, written or reproduced legibly on one side only, with double spaces between lines, except for quotations which may be single spaced, and margins of approximately 40 millimetres on the left-hand side.

• (9) The characters used shall be at least 12 points or 10 pitch size.

• (10) Back sheets and covers shall be of 176 g/m² cover stock.

• (11) The appellant’s factum shall be bound front and back in blue cover stock, the respondent’s factum shall be bound front and back in green cover stock, and the intervenor’s factum shall be bound front and back in grey cover stock.

Appeals from Sentence Only

• (12) For an appeal from sentence only, the factum submitted by the appellant (other than the Attorney General) shall be in Form 19.

• (13) Where the Attorney General is the appellant, such changes shall be made in the form of the factum as may be required.

Books of Authorities

• 40.12 (1) Books of authorities shall be served and filed by the appellant at the time of filing the appellant’s factum.

• (2) The books of authorities shall contain only those authorities that the parties intend to refer to in oral argument.

• (3) The portions of the authorities to which reference may be made in oral argument shall be highlighted or sidebarred.

• (4) The copies of the authorities shall be legible, and may be printed on both sides of each page.

• (5) Books of authorities shall be served and filed by the respondent and other parties to the appeal at the time of filing the respondent’s or other party’s factum, and shall not contain any authorities in the appellant’s book of authorities.

Perfecting Appeals

• 40.13 (1) An appeal is perfected when:

  • (a) the material described in subsection 821(1) of the Code and in subrule 40.07(2) has been received by the clerk of the appeal court;

  • (b) a copy of the transcript, agreed statement of facts, if any, and appeal book have been received by the clerk of the appeal court, or a judge has made an order dispensing with the filing thereof;

  • (c) any application made under subsection 822(4) of the Code and rule 40.16 has been dismissed; and,

  • (d) the appellant has filed his or her factum.

Consequences of Perfecting Appeal

• (2) When an appeal is perfected, it is ready for hearing and may be entered on a list for hearing.

Fixing Date for Hearing

40.14 When an appeal is listed for hearing, the clerk of the appeal court shall contact the parties and fix the date for the hearing of the appeal, or where dates are not so fixed, shall give notice to the parties of a date at which the parties shall appear before a judge, for the purpose of scheduling a date for the hearing of the appeal.

Appeals in Writing

Notice of Intention

• 40.15 (1) Where an appellant in an appeal wishes to present his or her case on appeal and argument in writing, the appellant shall give notice of such intention in Form 2B within the time and in the manner prescribed in subrule 40.10(1) respecting appeal books.

Materials to be Filed

• (2) On an appeal in writing, the appellant shall serve and file transcripts of evidence (if any), appeal books and all other material, except factums, within such time and within such manner as would be required if the appeal were to be heard with oral argument and shall further serve and file his or her written argument within 90 days of the appeal being perfected.

Consideration of Materials Filed

• (3) The material on the appeal in writing shall be considered by a judge in chambers who may give directions as to whether the respondent should be requested to serve and file written argument and prescribe the times for doing so as well as for the service and filing of any reply in writing by the appellant.

• (4) Where the judge in chambers considers that no written argument from the respondent is required, he or she shall prepare written reasons for dismissing the appeal.

• (5) Where the judge in chambers directs that the respondent provide written argument and the appellant written argument in reply, the appeal shall be considered by the judge in chambers who required argument, or any other judge, who shall give written reasons for his or her decision.

• (6) The reasons described in subrules (4) and (5) shall be dealt with as if they were a reserved judgment.

Trials De Novo

Application

• 40.16 (1) An application under subsection 822(4) of the Code for a trial de novo shall be made before a date has been fixed for hearing the appeal under rule 40.14.

Notice of Application

• (2) Notice of an application for a trial de novo shall be served on every other party at least seven days in advance, except that, if the notice is filed with the notice of appeal, it shall be served with the notice of appeal in accordance with subrule 40.06(1).

Date for Hearing of Application

• (3) Upon receipt of an application under subrule (1), the clerk of the appeal court shall enter the application for hearing on a date fixed by a judge or, where hearing dates are not so fixed, enter the application on a list of applications to be heard at a regular or special sitting of the appeal court.

Notice

• (4) Unless a judge otherwise orders, the clerk of the appeal court shall serve each party with a notice of the date on which the application is to be heard.

Abandonment of Appeals

Notice

• 40.17 (1) Where an appellant wishes to abandon his or her appeal, in whole or in part, he or she shall serve on the respondent, in the manner provided in rule 5, a notice of abandonment in Form 9, signed by the counsel of record in the appeal, or by the appellant (in which case the signature shall be verified by affidavit or solemn declaration or witnessed by a counsel or the senior official of the institution in which the appellant is confined).

Dismissal as Abandoned

• (2) A judge in chambers may thereupon dismiss the appeal as an abandoned appeal, without the attendance of the counsel of record or the appellant.

Supervision of Appeals and Dismissal for Non-Compliance

Supervision Hearings

• 40.18 (1) Unless otherwise ordered by a judge of the court, the clerk of the appeal court shall, on notice to both parties, place before a judge, at a time and place specified by the clerk in the notice, any appeals including:

  • (a) where all transcripts required for the appeal pursuant to this rule or as ordered by a judge have not been served and filed with proof of service within 90 days of the date the notice of appeal was filed.

  • (b) where the appellant’s appeal book has not been served and filed within 15 days of notification that all transcripts ordered are available or within 60 days of the filing of the notice of appeal in a case in which an agreed statement of facts is filed;

  • (c) where the appellant’s factum has not been served and filed within 90 days of receiving the Court Reporter’s Completion Certificate pursuant to subrule 40.11(4);

  • (d) where the respondent’s factum has not been served and filed not later than 10 days of the week in which the appeal is scheduled to be heard;

  • (e) where an order staying or suspending an order of the trial court, or an order releasing the appellant from custody pending the hearing of the appeal, has expired before the hearing of the appeal;

  • (f) where the appellant fails to serve and file a written appeal in accordance with subrule 40.15(1), and the material required by subrule 40.15(2); or,

  • (g) Any other circumstance in which it appears to the clerk of the appeal court that there has been undue delay in perfecting or fixing a date for the appeal for any reason.

• (2) Notwithstanding subrules (1) and (3), where the only reason a transcript has not been filed is that a court reporter has not prepared the transcript, the appellant may notify the respondent in writing of the reason for the delay and need not attend the supervision hearing mentioned in subrule (1) unless otherwise ordered by a judge.

• (3) Where the clerk of the appeal court provides counsel with a notice of supervision hearing under this rule, directing that counsel of record for the appellant and respondent or counsel on their behalf fully instructed and fully authorized to deal with the matter attend the hearing, the counsel shall appear before the judge at the time and place fixed in the notice of supervision hearing, without further notice.

• (4) After hearing the counsel of record or counsel appearing on their behalf fully instructed and fully authorized to deal with the matter, or where counsel does not appear, the judge may make any order concerning the appeal as he or she deems appropriate, including dismissing the appeal as abandoned.

Appeals Alleging Ineffective Assistance or Incompetence of Counsel

• 40.19 (1) Where a notice of appeal, factum or appeal in writing includes a direct or indirect allegation that the appellant’s trial counsel was incompetent or for any other reason provided ineffective assistance, the counsel filing the notice of appeal, factum or appeal in writing and the respondent shall notify the clerk of the appeal court forthwith of the allegation.

• (2) Upon being notified in accordance with subrule (1), the clerk of the appeal court shall set a date for the attendance of the parties for directions by a judge.

• (3) Where a notice of appeal directly or indirectly raises the issue of incompetence or ineffective assistance of counsel at trial, the parties to the appeal shall comply with the Superior Court of Justice Protocol – Allegations of Incompetence (Schedule 1).

Time Estimates for Appeal Hearing

• 40.20 (1) Where the appellant’s factum is filed, a judge may review it and assign a time estimate for the hearing of the appeal.

• (2) When a judge assigns a time estimate that is different from the appellant’s time estimate, the clerk of the appeal court shall notify the parties in writing of the change, and the content of subrule (3).

• (3) Any time assigned for the hearing of the appeal by a judge, other than the judge hearing the appeal, is subject to revision by the judge hearing the appeal.

Hearings of Appeals from Sentence Only

40.21 On the appeal from sentence only, the appellant shall be limited to 15 minutes for oral argument, the respondent to 10 minutes, and the appellant to 5 minutes for reply, except with the leave of the judge hearing the appeal.

Failure to Appear for the Hearing of the Appeal

Failure to Appear

• 40.22 (1) Where an appellant fails to appear personally, or by a counsel of record, on the date and at the time fixed for the hearing a judge may, on proof that notice of hearing of the appeal has been given, dismiss the appeal for want of prosecution.

• (2) Where a respondent fails to appear personally, or by a counsel of record, on the date and at the time fixed for the hearing of the appeal a judge may, upon being satisfied that the appellant has not him or herself defaulted under subrule (1), determine the appeal in the absence of the respondent or argument from the respondent, as the case may be.

Reasons for Judgment

Where Reasons in or Reduced to Writing

• 40.23 (1) In every appeal where reasons are given in writing or given orally and later reduced to writing, the clerk of the appeal court shall send a copy of the reasons:

  • (a) where an appellant or respondent has appeared in person, to the appellant or respondent, as the case may be,

  • (b) where the appellant or respondent has appeared by a counsel of record, to the counsel of record for the appellant or respondent, as the case may be,

  • (c) to the trial court from which the appeal was taken, and,

  • (d) to the Regional Senior Judge of the Ontario Court of Justice in the region in which the proceedings arose.

Where Reasons in Writing Not Given

• (2) Where reasons in writing are not given, the clerk of the appeal court shall notify the trial court of the result of the appeal.

Rule 41: Stays and Suspensions Pending Appeal[Code ss. 261 & 683(5)]

Application of the Rule

41.01 This rule applies to applications for an order:

• (a) under section 261 of the Code, directing that any order under subsection 259(1) or (2) of the Code arising out of a conviction or discharge in respect of an offence under any of sections 220, 221, 236, 249 to 255 or 259 of the Code be stayed pending the final disposition of an appeal or until otherwise ordered by the court; and,

• (b) under subsection 683(5) of the Code, directing that any order there described be suspended until an appeal under section 813 of the Code has been determined.

To Whom Made

41.02 Applications under rule 41.01 shall be made to a judge in the region or county in which the appeal to which the application relates is to be heard.

Materials for Use on Application

Materials to be Filed

• 41.03 (1) The notice of application in Form 1 under this rule shall be accompanied by:

  • (a) a copy of the information in which is contained the charge upon which the applicant was convicted or discharged of the offence to which the application relates;

  • (b) a copy of the notice of appeal and any supplementary notice of appeal;

  • (c) a properly signed and commissioned affidavit 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 application.

Affidavit of the Applicant

• (2) The affidavit of the applicant required by paragraph (1)(c) shall contain:

  • (a) particulars of the offence of which the applicant was convicted or discharged, including reference to the results of any analyses of the applicant’s bodily substances to determine the presence of alcohol or drugs, and whether the offence involved property damage, bodily harm or death;

  • (b) particulars of the applicant’s driving record, if any;

  • (c) a statement of the applicant’s places of abode in the three years preceding his conviction or discharge and where the applicant proposes to reside pending the determination of the appeal;

  • (d) particulars of the applicant’s employment prior to conviction or discharge, and whether such employment is reasonably expected to continue pending the determination of the appeal;

  • (e) particulars of the applicant’s criminal record, if any;

  • (f) a statement whether the applicant is addicted to the use of alcohol or other drugs and, if so, what steps, if any, the applicant has undertaken or proposes to undertake for the treatment of such addiction pending the determination of the appeal; and,

  • (g) particulars of what unnecessary hardship would be caused to the applicant if the stay or suspension were not entered.

Applicant’s Application Record

• (3) Unless otherwise ordered by the judge hearing the application, the applicant shall prepare, serve and file an application record in accordance with rule 41.03, but no factum shall be required.

Respondent’s Application Record

• (4) The respondent may prepare, serve and file a respondent’s application record in accordance with rule 41.03 but no factum shall be required.

Service and Filing of Notice

General Rule

• 41.04 (1) Service of the notice of application under subrule 41.03(1) and of the supporting materials required by subrule 41.03(2) shall be made upon the respondent, in accordance with rule 5, at least 2 clear days before 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 at least 2 clear days before the date fixed for the hearing of the application.

Consent in Writing

41.05 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.

Limitation on Stay or Suspension

41.06 Unless otherwise ordered by the judge hearing the application or determining the application in chambers on consent, an order staying or suspending an order imposed by the trial court shall contain a date when the stay or suspension will expire that is not later than 9 months from the date of the order.

Rule 42: Release from Custody Pending Appeal[Code ss. 816 & 832(1)]

Application of the Rule

42.01 This rule applies to applications by a person who was the defendant in a summary conviction proceeding and by whom an appeal has been taken under section 813 or 830 of the Code for release from custody pending the hearing or determination of the appeal.

To Whom Application Made

42.02 An application referred to in rule 42.01 shall be made to a judge in the region or county in which the appeal to which the application relates is to be heard.

Materials for Use on Application

Materials to be Filed

• 42.03 (1) The notice of application in Form 1 under this rule shall be accompanied by:

  • (a) a copy of the information in which is contained the charge in respect of which the appeal is taken;

  • (b) a copy of the notice of appeal and any supplementary notice of appeal;

  • (c) a properly signed and commissioned affidavit 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 application.

Affidavit of the Applicant

• (2) The affidavit of the applicant required by paragraph (1)(c) shall state:

  • (a) the particulars of the conviction and, where applicable, sentence imposed at trial;

  • (b) any grounds of appeal not specified in the notice of appeal or supplementary notice of appeal;

  • (c) the places of abode of the appellant in the three years preceding the conviction, and where the appellant proposes to reside if released;

  • (d) the employment of the appellant prior to conviction and whether the appellant expects to be employed if released and, if so, where;

  • (e) the criminal record of the appellant, if any;

  • (f) what hardship would be caused if the appellant were to be detained in custody pending the determination of the appeal; and,

  • (g) where the appellant proposes to enter into a recognizance with sureties, the amount of money or value of other security that the appellant proposes should be deposited and, where practicable, the names of the sureties and the amount for which each is to be liable.

Affidavit on Behalf of the Prosecutor

• (3) Where the prosecutor wishes to assert that the detention of the applicant is necessary in the public interest, and to rely on material other than required to be filed under subrule (1) or (2), the prosecutor shall serve and file an affidavit setting out the facts upon which reliance is placed.

Cross-Examination on Affidavits

• (4) Where an affidavit has been filed under this rule, the party opposite may cross-examine on such affidavit in accordance with rule 6.07.

Applicant’s Application Record and Factum

• (5) The applicant shall prepare an application record which 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 all material required to be filed under subrule (1), including a list of all relevant transcripts of evidence in chronological order, but not necessarily the transcripts themselves; and,

  • (d) a copy of any other material in the court file that is necessary for the hearing of the application,

  but, unless a judge otherwise orders, no factum is required.

Respondent’s Application Record and Factum

• (6) Where the respondent is of the opinion that the application record is incomplete, the respondent shall, as soon as practicable after being served with the application record, prepare, serve and file with the clerk of the court in the place where the application is to be heard the respondent’s application record containing:

  • (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 the material to be used by the respondent on the application and not included in the application record,

  but, unless a judge otherwise orders, no factum shall be required.

Material May be Filed as Part of Record

• (7) Any material 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.

Service of Notice

General Rule

• 42.04 (1) Service of the notice of application and of the supporting materials required by subrule 42.03(1) shall be made upon the respondent, in accordance with rule 5, at least 2 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 office of the clerk of the appeal court in the place where the application is to be heard, at least 2 clear days before the date fixed for the hearing of the application.

Consent to Abridgment or Extension of Time

• (3) Any time prescribed by this rule for serving or filing the notice of application or supporting materials may be abridged or extended by consent in writing endorsed on the relevant document by the party served.

Order Directing Release

Form of Order

• 42.05 (1) An order directing the terms upon which an accused is to be released from custody pending appeal upon application under this rule may be in Form 10.

Sufficiency of Order

• (2) An order in Form 10 shall be sufficient authority for a justice of the peace to prepare the necessary undertaking or recognizance when satisfied that any condition precedent thereto has been met.

Consent in Writing

• (3) The respondent may consent in writing to the order sought, upon terms included in a draft order in Form 10A, and a judge may grant such order without the attendance of counsel.

Conditions of Release

• (4) Unless otherwise ordered by the judge hearing the application, every order for release from custody pending appeal shall contain the conditions:

  • (a) that the appellant will surrender into custody at the institution from which he or she is released, or such other institution as may be specified in the order, by 6:00 p.m. on the day prior to the hearing of the appeal or such other day as is specified in the order,

  • (b) that the appellant acknowledges that failure to surrender into custody in accordance with the terms of the order will be deemed to constitute an abandonment of the appeal,

  • (c) that the appeal will be pursued with all due diligence,

  • (d) that the appellant will keep the peace and be of good behaviour, and,

  • (e) that the appellant will advise the clerk of the appeal court of his or her place of residence.

Expiration of Release Orders

• (5) Unless otherwise ordered by the judge hearing the application, an order directing the release of the appellant from custody pending appeal shall contain a date when the order will expire that is not more than 9 months from the date of the order.

Variation of Bail

• (6) A judge may, on cause being shown, cancel an order previously made under section 816 of the Code and may make any order that could have been made under that section.

Order May be Made without Attendance of Counsel

• (7) An order for a new recognizance or undertaking varying a condition may be made by a judge without the attendance of counsel, upon filing the written consent of counsel for the respondent.

Content of Material to be Filed

• (8) Where the appellant seeks an order under subrule (6) which varies the condition referred to in paragraph (4)(a), the material filed in support of the application shall contain a summary of the status of the appeal, an explanation for any failure to comply with the rules and, where applicable, the earliest feasible date on which the appeal may be heard.

Rule 43 Extraordinary Remedies[Code, s. 774 ff.]

Application of the Rule

43.01 This rule applies to applications in criminal matters by way of certiorari, habeas corpus, mandamus, procedendo and prohibition, including applications to quash a subpoena, warrant, conviction, inquisition or other order or determination and applications for discharge of a person in custody.

To Whom Application Made

43.02 Applications made under rule 43.01 shall be made to a judge of the court in the region, county or district in which the proceedings to which the application relates have been, are being or are to be taken.

Contents of Notice

General Rule

• 43.03 (1) A notice of application under this rule shall be in Form 1 and comply with rule 6.03 and shall also state the subpoena, warrant or other order or determination to which the application relates.

Applications to Quash

• (2) Where an applicant seeks to quash a warrant, conviction, order or determination, other than a subpoena or warrant to compel the attendance of a witness, there shall be endorsed upon the notice of application a notice in the following form addressed to the Court Services Manager or coroner or as the case may be:

  By virtue of subrule 43.03(3) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), you are, upon receiving this notice, to return forthwith to the Clerk’s Office at true copies of the conviction (or as the case may be) herein referred to, together with true copies of the indictment, information, exhibits and papers or other documents touching the matter, as fully and as entirely as they remain in your custody, together with this notice and the certificate prescribed in the said rule.

  Dated this day of , 2

  C.D,

  Solicitor for the Applicant

  To: A.B.

  Court Services Manager at

  (or coroner, or as the case may be)

Return to Clerk

• (3) Upon receipt of the notice of application endorsed under subrule (2), the Court Services Manager or coroner, as the case may be, shall forthwith return to the Clerk’s Office at the place where the application is returnable true copies of the conviction, order, or warrant, together with true copies of the indictment, information, exhibits and any other proceedings or documents touching the matter, and the notice served upon him or her with a certificate attached thereto in the following form:

  Pursuant to the accompanying notice I herewith return to this Honourable Court the following:

  True copies of:

  • 1 the information;

  • 2 the conviction (or as the case may be);

  • 3 the exhibits, if capable of reproduction and relevant to the matters in question;

  • 4 any other papers or documents touching the matter, if capable of reproduction and relevant to the matters in question.

  And I hereby certify to this Honourable Court that I have above truly set forth all exhibits, papers and documents in my custody or power relating to the matter set forth in the said notice of application.

  Date

  Court Services Manager (or coroner, as the case may be)

Effect of Return

• (4) Subject to subrules (5) and (6), the documents listed in the certificate under subrule (3), together with any transcript of the proceedings filed by the applicant, shall have the same effect in law as a return to a writ of certiorari.

• (5) Subject to subrule (6), service of a notice of application to quash under subrule (2) upon a provincial court judge, justice or justices, coroner, or as the case may be, suspends the proceedings which are the subject of the application.

• (6) A judge may, upon service of a notice of application therefor in such manner, if at all, as the judge may direct, order that the proceedings which are the subject of the application to quash shall continue upon such terms as appear just.

Further or Amended Return

• (7) The judge hearing an application to quash may direct a further or amended return.

Filing and Service of Notice of Application

Time for Giving Notice of Application

• 43.04 (1) An applicant shall give notice of application in Form 1 and in accordance with rule 43.03 within 30 days after the day on which the order which is the subject of the application was made or given.

General Rule

• (2) Notice of application shall be given:

  • (a) where the application includes an application for prohibition, by personal service upon the provincial court judge, justice or justices, coroner or other person whose order is the subject of the application; and,

  • (b) where the applicant is Her Majesty the Queen in Right of Ontario or Canada, as represented by the Attorney General, and the respondent is an accused not represented by a solicitor, by personal service on the respondent, or, where the respondent is an accused represented by a solicitor, on the solicitor of record; or,

  • (c) where the respondent is Her Majesty the Queen in Right of Ontario or Canada, as represented by the Attorney General, by service upon the prosecutor in accordance with rule 5; and,

  • (d) by filing, or sending by prepaid registered mail to the office of the clerk of the court in the place where the application is to be heard, two copies of the notice of application, together with proof of service thereof,

  and the application shall be returnable within 30 days of service.

Extension of Time

• (3) A judge, either before or upon the hearing of the application may, by order, extend any time prescribed by this rule, on such terms as appear just.

Consent to Extension of Time

• (4) Any time prescribed by this rule for serving or filing the notice of application or supporting materials may be extended by consent in writing endorsed on the relevant document by the party served or in such other form as a judge of the court may direct.

Materials for Use on Application

Materials to be Filed

• 43.05 (1) The notice of application in Form 1 shall be accompanied by:

  • (a) a copy of the subpoena, warrant, conviction or other order or determination which is the subject of the application;

  • (b) a copy of the indictment (information) containing the charge to which the application relates;

  • (c) where there is no or an incomplete record of the proceedings giving rise to the issuance of the subpoena, warrant or other order or determination which is the subject of the application, an affidavit of or on behalf of the applicant deposing to the matters described in subrule (2);

  • (d) a transcript of the proceedings giving rise to the issuance of the subpoena, warrant or other order or determination which is the subject of the application; and,

  • (e) a copy of any other material in the court file that is necessary for the hearing and determination of the application.

Affidavit of or on Behalf of the Applicant

• (2) The affidavit of or on behalf of the applicant described in paragraph (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, together with a date or dates scheduled for trial or preliminary inquiry in respect of such charge;

  • (c) a statement of all facts material to a just determination of the application which are not disclosed in any other materials filed in support of the application;

  • (d) where the applicant seeks habeas corpus to obtain release from custody, the consent of the applicant to dispense with the issue of the writ of habeas corpus, the return thereto, and the presence of the applicant before the judge determining the application; and,

  • (e) where the applicant seeks habeas corpus to obtain release from custody, a statement that the applicant is not required to be detained in custody in respect of any other matter.

Cross-Examination on Affidavits

• (3) Where an affidavit has been filed under this rule, the party opposite may cross-examine on such affidavit in accordance with rule 6.07.

Use of Agreed Statement of Facts

• (4) A judge, before or upon the hearing of the application, may act upon a statement of facts in accordance with rule 6.09.

Applicant’s Application Record and Factum

• (5) The applicant shall prepare, serve and file an Application Record and Factum in accordance with subrules 6.05(1) and (2) and rule 33.

Respondent’s Application Record and Factum

• (6) The respondent shall prepare, serve and file an Application Record and Factum in accordance with subrules 6.05(3) and (4) and rule 33.

Consent in Writing

43.06 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 in the circumstances, may grant the order on such terms as are contained in the draft order filed without the attendance of solicitors.

Rules 50.01 to 50.09: Repealed.