Supreme Court of Newfoundland, Trial Division Rules for Orders in the Nature of Certiorari, Habeas Corpus, Mandamus and Prohibition

SI/2000-33

CRIMINAL CODE

Registration 2000-05-24

Supreme Court of Newfoundland, Trial Division Rules for Orders in the Nature of Certiorari, Habeas Corpus, Mandamus and Prohibition

The Supreme Court of Newfoundland, Trial Division, pursuant to subsection 482(1)Footnote a of the Criminal Code, hereby makes the annexed Supreme Court of Newfoundland, Trial Division Rules for Orders in the Nature of Certiorari, Habeas Corpus, Mandamus and Prohibition.

Saint John’s, Newfoundland, April 18, 2000

T. Alex Hickman
Chief Justice on behalf of the
Supreme Court of Newfoundland,
Trial Division

Interpretation

  •  (1) The definitions in this subrule apply in these Rules.

    application

    application means an originating or interlocutory application made to the Court, to a judge in chambers, or to the Court when sitting during a trial or under an order of the Court. (demande)

    Code

    Code means the Criminal Code. (Code)

    Court

    Court means the Supreme Court of Newfoundland, Trial Division. (Cour)

    judge

    judge means a judge of the Court. (juge)

    Registrar

    Registrar means the Registrar of the Court and the Registrar’s lawful deputy. (registraire)

  • (2) For greater certainty, the interpretation sections of the Code apply to these Rules.

General

 Where no other express provision is made in these Rules in respect of applications, the Criminal Appeal Rules of the Supreme Court of Newfoundland, Trial Division in respect of applications apply with such modifications as are necessary.

Time Period Extension or Abridgement

  •  (1) The Court may, in the interests of justice and on such terms as it thinks just, extend or abridge the period within which a person is required or authorized by these Rules, or by any order of the Court, to do or abstain from doing any act in a proceeding.

  • (2) The Court may extend any period referred to in subrule (1) even if the application for extension is not be made until after the expiration of the period.

  • (3) The period within which a person is required by these Rules or by any order of the Court to serve, file or amend any pleadings or other document may be extended by consent in writing of the parties.

Applications

 Rules 5 to 18 apply in respect of an order in the nature of certiorari, habeas corpus, mandamus or prohibition, as the case may be.

  •  (1) Subject to subrule (3), an order in the nature of certiorari, habeas corpus, mandamus or prohibition may be granted upon application, and notice of the application shall be served in accordance with Rule 6.

  • (2) A writ of certiorari, habeas corpus, mandamus or prohibition shall not be issued but all necessary provisions shall be made in the order referred to in Rule 4.

  • (3) In an urgent case, an application for an order may be heard and determined before its notice has been issued, if the applicant undertakes to have the notice issued immediately and then served in accordance with Rule 6.

  •  (1) A notice of an application for an order and all supporting documentation shall be served on every person who appears to be interested or likely to be affected by the proceedings at least seven clear days before the date stated in the notice.

  • (2) The Court may, in the interests of justice, require a notice of an application and all supporting documentation to be served on any person not previously served.

  • (3) Where an application is sought to quash a conviction, order or warrant, the application and all supporting documentation shall also be served on

    • (a) the Attorney General of Newfoundland; and

    • (b) the Provincial Court Judge or justice or justices of the peace who made the conviction or order or who issued the warrant.

  • (4) The Court may, in the interests of justice, permit a person not served with the notice of application and supporting documentation to show that the person is affected by the proceedings and may permit the person to take part in the proceedings as though served.

  •  (1) A party to an application for an order who is confined or any other interested person may apply to the Court for permission to have the party brought before the Court for the hearing of the application.

  • (2) An application to have a party brought before the Court shall be supported by an affidavit setting out the facts of the case.

  • (3) Before hearing the application for the order a judge may, by way of a written order, grant the application referred to in subrule (2).

Certiorari

 Subject to Rule 6, an application for an order in the nature of certiorari shall be filed and served within six months after the conviction, acquittal, order or warrant to which it relates.

  •  (1) The notice set out in Form A of the schedule shall be endorsed on an application for an order in the nature of certiorari and be addressed to the appropriate Provincial Court Judge, justice or justices of the peace, officer or clerk, as the case may be.

  • (2) For the purposes of an application for an order in the nature of certiorari, all things required by Form A to be returned to the Registry of the Court are deemed to be part of the record.

  •  (1) Subject to subrule (3), on receiving a notice that is endorsed in accordance with subrule 9(1), the appropriate Provincial Court Judge, justice or justices of the peace, officer or clerk, as the case may be, shall immediately return the record, which consists of the conviction, acquittal, order or warrant, together with all things relating to the matter, including the information, any evidence and exhibits filed and the notice served on him or her, to the office mentioned in the notice, with a certificate endorsed on the notice in the manner set out in Form B of the schedule.

  • (2) The certificate referred to in subrule (1) has the same effect as a return to a writ of certiorari.

  • (3) If the record has been transmitted by the Provincial Court Judge, justice or justices of the peace to the proper officer, the officer shall not endorse the notice with the certificate referred to in subrule (2) but shall certify on the notice that the transmission has taken place and the date of it.

  • (4) If the record has not been received by the officer to whom or the office to which they are required to be transmitted, the officer or clerk of the office shall return to the appropriate Provincial Court Judge, justice or justices of the peace, officer or clerk, as the case may be, of the Provincial Court, a certificate to that effect.

  • (5) The court may, in the interests of justice, dispense with the return of the evidence or exhibits or part of them.

  • (6) A copy of this Rule shall appear on or be annexed to the application served on the appropriate Judge, justice or justices of the peace, clerk or officer, as the case may be, of the Provincial Court from whom the return is required.

 Notwithstanding Rules 5 to 9, the Court may quash a conviction, order or warrant on receipt from the Crown of an ex parte application to quash.

Mandamus

 No order in the nature of mandamus shall be granted unless at the time of the application for it an affidavit is produced by which a person deposes upon oath that the application is made by or on behalf of the person, whose name shall appear as the applicant’s.

 No action or proceedings shall be commenced or prosecuted against any person in respect of anything done in accordance with an order in the nature of mandamus that is issued by the Court or any judge.

 The order or judgment may compel the performance of the duty immediately or after the expiration of a fixed time and may be subject to specified terms.

Habeas Corpus

  •  (1) An application for an order in the nature of habeas corpus shall be brought by application to a judge and may be joined with one or more of the applications for an order referred to in Rule 4.

  • (2) A judge may issue the order in Form C of the schedule, or with such variations, not being matters of substance, as the nature of the case and the interests of justice may require.

  • (3) The order may be granted ex parte.

 In addition to being served in accordance with Rule 6, the application and the order in the nature of habeas corpus shall also be served on the person having custody of the applicant and on the Attorney General of Newfoundland.

 After hearing the application for an order of habeas corpus and after the issuance and return of it, the judge may

  • (a) proceed as soon as possible as the interests of justice permit to dispose of the matter, whether in the presence of the applicant, or with the consent of the parties, in the applicant’s absence; and

  • (b) direct that an order be immediately drawn up for a prisoner’s discharge, and the order is a sufficient warrant for any gaoler or constable or other person, for the prisoner’s discharge.

Coming into Force

 These Rules shall come into force on June 1, 2000.

SCHEDULE(Rule 9 and subrules 10(1) and 15(2))

FORM A

To: A.B. Provincial Court Judge at

(or as the case may be).

You are hereby required immediately after service of this application to return to the Registry of the Supreme Court at (as the case may be) the conviction (or as the case may be) referred to in the application together with the information, evidence and exhibits filed, if any, and all things touching the matter as fully and entirely as they remain in your custody, together with this notice.

(Date)

(Signature of C.B.)

Solicitor for the Applicant

FORM B

Pursuant to the accompanying notice, I return to this Honourable Court the following papers and documents:

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

  • (2) the information and the warrant issued on the conviction;

  • (3) the evidence taken at the hearing and all exhibits filed;

  • (4) all other papers or documents relating to the matter.

And I certify to this Honourable Court that I have above truly set forth all the papers and documents in my custody and power relating to the matter set out in the application.

(Date)

(Signature of A.B.)

FORM CIn the Supreme Court of Newfoundland Trial Division

BETWEEN:

A.B.APPLICANT

AND:

RESPONDENT

Order

TO: The Superintendent (or as the case may be)

(Name of Her Majesty’s Penitentiary)

St. John’s, Newfoundland

IF IS HEREBY ORDERED THAT you bring A.B., the applicant, in person before the presiding judge, at the Court House, (address), on , the day of , 20, at o’clock in the , together with this Order, so that such judge of this Honourable Court may then and there cause to be done with A.B. what is right and just according to law.

IT IS FURTHER ORDERED THAT you deliver immediately to the Registry at the Court House at the said place true copies of all orders, warrants, committals or other documents pursuant to which the said A.B. is confined or restrained of his or her liberty and which are in your possession or control, together with your certificate that the documents listed in such certificate are of the documents pursuant to which the said A.B. is confined or restrained as aforesaid.

DATED at , this day of 20.

(Signature of A.B.)

Date modified: