Criminal Proceedings Rules of the Supreme Court of Newfoundland and Labrador (SI/2018-43)

Marginal note:Case Management Judge may be the Trial Judge

10.11 The case management judge is not precluded from being the trial judge in the proceeding by virtue of being the case management judge.

RULE 11Applications Generally

Marginal note:Application of this Rule

• 11.01 (1) This Rule applies to all applications initiated by notice of application, including those applications set out in Rules 12 to 19, except where these Rules provide otherwise or as ordered by a judge.

• (2) Unless otherwise ordered, an accused who is not represented by counsel is not required to file any of the documents required by Rules 11 to 19.

Marginal note:Commencement of Application

• 11.02 (1) Applications shall be initiated by a Notice of Application in CR Form 11.02.

• (2) The trial judge may dispense with the requirement to file a Notice of Application when an application is brought during the course of the trial.

Marginal note:Time for Filing Pre-Trial Applications

11.03 Unless otherwise specified by the Code, no pretrial applications in relation to an indictment in respect of which there has been a pre-trial conference may be filed with the court without leave.

Marginal note:Obtaining Leave to File a Pre-Trial Application

• 11.04 (1) Leave to file a pre-trial application may be requested in arraignment court or by way of separate application to a judge.

• (2) Leave may be requested orally without filing a Notice of Application.

• (3) A judge may order that a Notice of Application to request leave and supporting material be filed with the court before determining whether to grant leave.

• (4) If leave is granted to file an application, the judge may also order:

  • (a) the date by which the application and supporting materials shall be filed;

  • (b) the dates by which the parties shall file additional materials and briefs;

  • (c) the date for the hearing of the application; and

  • (d) such consequential directions as may be appropriate.

Marginal note:Contents of the Notice of Application

• 11.05 (1) The Notice of Application shall set out the following:

  • (a) the place, date and time of the hearing or the place, date and time of the sitting of arraignment court at which the date for the hearing of the application will be set;

  • (b) an estimate of the time required for the hearing of the application;

  • (c) a statement whether the accused is in custody and, if so, whether he or she wishes to be in court for the hearing of the application;

  • (d) the present status of the proceedings against the accused, including the date of any conferences;

  • (e) the precise relief sought;

  • (f) the grounds for the relief sought, including a reference to any statutory provision or rule on which the applicant relies; and

  • (g) where an order is required abridging or extending the time for service or filing of the Notice of Application or supporting documentary, affidavit and other material intended to be used at the hearing of the application, a statement to that effect.

• (2) The documentary, affidavit and other material intended to be used at the hearing of the application shall be attached to the Notice of Application.

• (3) Each Notice of Application, affidavit, memorandum, brief or other document filed with the court on or after the date the application is filed which relates to that application shall have include immediately below the title of proceeding or at some convenient place, if there is no title of proceeding on the document, the following text box:

  SUMMARY OF CURRENT DOCUMENT
  Court File Number(s):
  Date of Filing of Document:
  Name of Filing Party or Person:
  Application to which Document being filed relates:	[e.g. Application of Accused for order ruling evidence as inadmissible]
  Statement of purpose in filing:	[e.g. to support/oppose application]
  Court Sub-File Number, if any

Marginal note:Service and Filing of Materials

• 11.06 (1) Unless otherwise specified by the Code or these Rules, or a judge otherwise directs, a Notice of Application, including all documentary, affidavit and other material intended to be used at the hearing of the application, together with proof of service, shall be served on all parties in accordance with the court’s civil rules and filed with the court not less than 21 days before the hearing date.

• (2) Where there is uncertainty whether anyone not a party to an application should be served, the applicant may apply ex parte to a judge for an order for directions.

• (3) Unless otherwise ordered, a Notice of Application and all supporting documentary, affidavit and other material intended to be used at the hearing of the application shall be filed and the application shall be heard at the judicial centre where the trial is to be held.

Marginal note:Getting a Hearing Date for Pre-Trial Applications

• 11.07 (1) A hearing date for a pre-trial application may be set by either a registry clerk or a judge in arraignment court.

• (2) If an application is first returnable to a sitting of arraignment court, the presiding arraignment court judge may hear the matter or set appropriate dates for a hearing and give all consequential directions with respect to, among other things, the dates for filing of materials and briefs prior to the hearing and the manner of conducting the hearing.

• (3) Where a date for a pre-trial application is set under this rule and the application will be heard by the trial judge, the Chief Justice shall designate the judge.

Marginal note:Materials to be Filed

11.08 Unless otherwise ordered, the following deadlines shall apply:

• (a) not more than seven days following service of the Notice of Application and the applicant’s documentary, affidavit and other material intended to be used at the hearing of the application, the respondent shall serve and file with the court, together with proof of service, all supporting documentary, affidavit and other material intended to be used at the hearing of the application;

• (b) not more than seven days following service of the respondent’s documentary, affidavit and other material, the applicant shall serve and file with the court, together with proof of service, the cases, statutory provisions and any other authorities the applicant intends to rely on at the hearing; and

• (c) not more than four days following service of the applicant’s cases, statutory provisions and any other authorities, the respondent shall file with the court, together with proof of service, the cases, statutory provisions and any other authorities the respondent intends to rely on at the hearing.

Marginal note:Affidavit Evidence

• 11.09 (1) Evidence on an application may be given by affidavit unless the Code or other applicable statute provides or a judge orders otherwise.

• (2) Subject to subrule (3), a deponent may state in an affidavit only facts that are within the personal knowledge of the deponent or other evidence that the deponent would be permitted to testify to as a witness in court.

• (3) An affidavit may contain statements of the deponent’s information and belief with respect to facts that are not contentious if the source of the information and the fact of belief are specified in the affidavit.

Marginal note:Oral Evidence

11.10 A witness may be examined or cross-examined on the hearing of an application with leave of the presiding judge.

Marginal note:Written Argument

11.11 The judge may, on such terms as he or she considers just, direct that argument on an application be presented in writing rather than by personal appearance of the parties.

Marginal note:Consent in Writing

• 11.12 (1) The respondent may consent in writing to the relief sought in an application and a judge, satisfied that the relief sought by the applicant should be granted, may grant the application without the attendance of the parties.

• (2) The applicant must file with the court a draft order and the respondent’s consent before the application will be considered by a judge under subrule (1).

Marginal note:Applications by Telephone or Video Conference

• 11.13 (1) With consent of all parties or with leave of a judge, an application or one or more parties or witnesses to an application may be heard by telephone conference call or by video conference or any other form of electronic communication acceptable to the court.

• (2) Leave of a judge under subrule (1):

  • (a) does not require the filing of an application; and

  • (b) shall be requested in writing.

• (3) Where there is a request for telephone conferencing or video conferencing, the consent or request for leave must be filed no less than seven days prior to the start of the hearing.

• (4) A registry clerk shall make the arrangements necessary for an application to be heard by telephone conference call or video conference under this rule on receipt of:

  • (a) a request from one of the parties where all the parties consent; and

  • (b) an order of a judge where leave is required.

• (5) An application may be heard by video conference by a judge in another judicial centre.

• (6) Unless otherwise ordered, an application that is determined under this rule is deemed to have been heard and determined at the judicial centre where the indictment was filed.

Marginal note:Abandonment

• 11.14 (1) An applicant who wishes to abandon his or her application shall serve on the other party and file with the court, together with proof of service, a Notice of Abandonment as follows:

  • (a) if the application was filed on behalf of Her Majesty the Queen, the Notice of Abandonment shall be in CR Form 11.14A and shall be signed by the prosecutor; or

  • (b) if the application was filed by or on behalf of the accused, the Notice of Abandonment shall be in CR Form 11.14B and shall be either,

    • (i) signed by the accused and accompanied by an affidavit of execution verifying the signature of the accused or witnessed by an officer of the institution in which the applicant is confined,

      or

    • (ii) signed by counsel for the accused and state that he or she has explained the consequences of abandonment to the accused and has been specifically instructed by the accused to abandon the application.

• (2) On the filing of a Notice of Abandonment, a registry clerk shall note the application dismissed as abandoned without the attendance of the parties.

• (3) An applicant who fails to appear, either in person or by a solicitor, at the hearing of an application may be deemed to have wholly abandoned the application.

RULE 12Applications for Removal as Solicitor of Record

Marginal note:Application

12.01 This Rule applies to applications by:

• (a) counsel for an accused to withdraw as solicitor of record; and

• (b) the prosecutor to have the solicitor of record for an accused removed as solicitor of record.

Marginal note:To Whom the Application is Made

12.02 Applications under this Rule shall be made as soon as is reasonably practicable to ensure that no adjournment of the proceedings will be required.

Marginal note:Service

12.03 The Notice of Application and the supporting documentary, affidavit and other material intended to be used at the hearing of the application required by Rules 11 and 12.06 shall be served on:

• (a) the accused;

• (b) the prosecutor where the application is made by counsel for an accused to withdraw as solicitor of record;

• (c) counsel for the accused where the application is made by the prosecutor to have counsel for the accused removed as solicitor of record; and

• (d) the Legal Aid Commission where the application requests that the Legal Aid Commission represent the accused.

Marginal note:Role of the Legal Aid Commission

• 12.04 (1) If the Legal Aid Commission has been served with an application under clause 12.03(d), it shall cause a representative of the Legal Aid Commission to appear at the hearing of the application who is able to:

  • (a) advise the judge as to:

    • (i) whether the accused has applied for legal aid and if so, the status of that application;

    • (ii) the role that the Legal Aid Commission could or should play in relation to the accused thereafter;

    • (iii) whether there are any reasons why a staff solicitor of the Legal Aid Commission could not be appointed to represent the accused and the limitations on such representation;

    • (iv) whether counsel engaged by the Legal Aid Commission could be made available to represent the accused without conflict of interest; and

    • (v) what period of time may be required for counsel to become familiar with the case;

    and

  • (b) if an application has not been made to the Legal Aid Commission, take an application for legal aid from the accused immediately following the hearing.

• (2) The information set out in clause (1)(a) may be set out in an affidavit filed with the court which is sworn by an officer of the Legal Aid Commission.

Marginal note:Appearance at the Registrar’s Request

12.05 The Registrar may request that a representative of the Legal Aid Commission appear at the hearing of any application under this Rule.

Marginal note:Materials for Use on Application

• 12.06 (1) A Notice of Application under this Rule shall be accompanied by an affidavit by or on behalf of the applicant, detailing:

  • (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) where the application is made by the solicitor of record for an accused or on behalf of an accused, the material facts relating to 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;

  • (c) where the application is made by or on behalf of the prosecutor, the material facts relating to the application including a statement of the reasons why the order sought should be given;

  • (d) a statement whether a delay or 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, the anticipated length of the delay or adjournment; and

  • (e) 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 clause (1)(d).

• (2) Where the accused, counsel for the accused and the prosecutor consent, the judge may dispense with the requirement of an affidavit under subrule (1).