Part II: Pre-Trial Proceedings [Rules 20-29] (continued)
Rule 24 Applications to Take Evidence on Commission[Code, s. 709] (continued)
Production of Documents
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.
- SI/2014-5, s. 33(E)
The Course of Examination
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.
(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.
(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
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.
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.
(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
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
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
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.
- SI/2014-5, s. 33(E)
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.
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