Production of Documents

Marginal note:General Requirement
  •  (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.

  • Marginal note:Process May Require Documents and Things

    (2) Unless the commissioner orders otherwise in the interests of justice, the process that 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) any documents or things described in clause (a) that are specified in the process compelling attendance.

  • Marginal note:Duty to Produce Other Documents

    (3) If a witness, on examination on 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 or, if not, within two days thereafter, unless the commissioner orders otherwise in the interests of justice.

The Course of Examination

Marginal note:Examination-in-Chief
  •  (1) Counsel of record for the applicant shall examine the witness whose evidence is to be taken on commission in-chief, in accordance with the rules of evidence that would apply at trial.

  • Marginal note:Cross-examination

    (2) After examination-in-chief by counsel of record for the applicant has been concluded, counsel of record for the respondent may cross-examine the witness in accordance with the rules of evidence that would apply at trial.

  • Marginal note:Re-examination

    (3) After cross-examination has been completed, counsel of record for the applicant may re-examine the witness in accordance with the rules of evidence that would apply at trial.

Objections and Rulings

Marginal note:Objections
  •  (1) If 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.

  • Marginal note:Rulings on Answers under Objection

    (2) A question to which objection is taken may be answered with the objector’s consent, and if the question is answered, a ruling shall be obtained from the preliminary inquiry or trial judge before the evidence is used at preliminary inquiry or trial.

  • Marginal note:Rulings on Answers Not Given

    (3) A ruling on the propriety of a question to which objection is taken and an answer not given may be obtained from the preliminary inquiry or trial judge.

Rulings by Commissioner

 A commissioner who is not the preliminary inquiry or 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 preliminary inquiry or trial judge is subject to review by the preliminary inquiry or trial judge.

Evidence Taken to Be Recorded

 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 2.02 or the parties agree otherwise.

Typewritten Transcript

Marginal note:Preparation of Transcript
  •  (1) If a party so requests, the person who recorded evidence taken on commission shall have a typewritten transcript of the evidence prepared and completed within four weeks after receipt of the request unless otherwise ordered by the court.

  • Marginal note: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.

  • Marginal note: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, shall provide an additional copy for the use of the court.

Use of Evidence at Preliminary Inquiry or Trial

 The judge presiding at the preliminary inquiry or trial at which the evidence taken on 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

Marginal note:General Rule
  •  (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.

  • Marginal note:Application of Rule 11.16

    (2) Rule 11.16 applies, with any necessary modifications, to a videotape or other recording made under subrule (1).

Rule 12 — Applications for Removal as Counsel of Record

Application

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

To Whom Application Made

 Applications under rule 12.01 shall be made to a judge sitting in the court centre 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 the preliminary inquiry or trial to ensure that no adjournment of the proceedings will be required for that purpose, or, if the matter arises at the preliminary inquiry or trial, to the presiding judge.

Service of Notice

Marginal note:General Rule
  •  (1) Service of a notice of the application under this rule and the supporting materials required by rule 12.04 shall be made on the accused and other counsel, at least 15 days before the date fixed for the hearing of the application, which shall not be later than 10 days before the date fixed for the preliminary inquiry or trial.

  • Marginal note:Manner of Service

    (2) Service of the Notice of Application and supporting materials shall be made in accordance with Rule 5, and if the application is made by counsel of record, on the accused by mailing a copy to his or her latest known address.

  • Marginal note:Filing with Proof of Service

    (3) Notice of Application and supporting materials, together with proof of service thereof, shall be filed in the court office for the place where the application is to be heard, not later than 10 days before the date fixed for the hearing of the application.

Materials for Use on Application

Marginal note:Materials to Be Filed
  •  (1) Notice of Application under this rule shall include, whether by affidavit by or on behalf of the applicant, or otherwise, an outline of the general circumstances of the application.

  • Marginal note:Factum May Be Required

    (2) A judge may require that factums complying with rules 6.06 to 6.08 be filed on applications under this rule.

Consent in Writing

 The respondent or accused may consent in writing to the order sought on terms included in a draft order that is filed, and a judge, satisfied that the relief sought by the applicant should be granted, may grant the order on those terms without the attendance of counsel.

Rule 13 — Application for Adjournment

Application

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

To Whom Application Made

 Applications under rule 13.01 shall be made to a judge sitting in the court centre in which the proceeding is to be held as soon as practicable and, absent exigent circumstances, not later than 15 days before the date fixed for the proceeding.

Service of Notice

Marginal note:General Rule

 Service of the Notice of Application under this rule shall be made on the prosecutor or accused, and all other parties to the proceedings, as the case may be, in accordance with Rule 5, not later than three days before the date fixed for the hearing of the application.

Rule 14 — Constitutional Issues

Application

 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 Code or otherwise, and

  • (c) to stay proceedings against an accused, in whole or in part, or for any other remedy under subsection 24(1) of the Charter or subsection 52(1) of the Constitution Act, 1982

on account of an infringement or denial of any right or freedom guaranteed under the Charter or otherwise.

To Whom Application Made

 Applications under this rule shall be made to a judge sitting in the court centre in which the proceeding is being held or is to be held in accordance with the times set out in rule 14.04.

Contents of Notice

 The Notice of Application and Constitutional Issue in Form 3 shall state

  • (a) the place and date of hearing as determined in accordance with rules 14.02 and 14.04;

  • (b) the precise relief sought on the application; and

  • (c) the grounds to be argued, including a concise statement of the constitutional issue to be raised and a summary of the nature of the facts in issue.

 
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