Criminal Proceedings Rules for the Superior Court of Justice (Ontario)

• 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.