The Hearing of Applications
Place of Hearing
6.06 (1) Unless otherwise ordered by a judge of the court, an application to which this rule applies shall be heard and determined by a judge of the court in the county or district in which the trial or other proceedings to which the application relates are being or are to be held.
Date of Hearing
(2) Unless otherwise ordered by a judge of the court, applications shall be heard on a date and at a time fixed by the Registrar on notice to all parties or their solicitors of record.
Evidence on Applications
General Rule: Evidence by Affidavit
6.07 (1) Evidence on an application may be given by affidavit in Form 4 and in accordance with rule 4.06, unless the Criminal Code or other applicable statute provides, or a judge of the court orders otherwise in accordance with rule 2.01.
Service and Filing of Affidavit
(2) Where an application is made on notice, the affidavits on which the application is founded shall be served with the notice of application and shall be filed with proof of service in the court office in the place where the motion or application is to be heard in accordance with rule 6.05(1).
(3) All affidavits to be used at the hearing in opposition to an application or in reply shall be served and filed with proof of service in the court office in the place where the application is to be heard in accordance with rule 6.05(3).
Cross-Examination on Affidavit
(4) Subject to the Criminal Code or any other applicable statute or rule of law, an affiant may be cross-examined on his or her affidavit at the office of a special examiner in sufficient time in advance of the return date of the application to permit a transcript of the cross-examination to be served on all parties and filed within the time limits described in rules 6.05(1) and (3), unless otherwise ordered by a judge of the court.
Evidence by Examination of Witnesses
6.08 Subject to the Criminal Code or any other applicable statute or rule of law, a witness may be examined or cross-examined upon the hearing of an application with leave of the presiding judge, and nothing in these rules shall be construed to affect the authority of a judge hearing an application to receive evidence through the examination of witnesses.
Use of Agreed Statements of Fact
6.09 A judge, before or upon the hearing of the application, may dispense with the filing of any transcript(s) or affidavit(s) required in these rules and act upon a statement of facts agreed upon by the prosecutor and the accused person or his solicitor of record.
Abandonment of Applications
Notice of Abandonment
6.10 (1) Where an applicant desires to abandon his or her application, he or she shall serve, in any manner provided by rule 5, a notice of abandonment in Form 9, signed by the solicitor of record in the application, or by the applicant (in which case the signature shall be verified by affidavit, solemn declaration or witnessed by a solicitor or an officer of the institution in which the applicant is confined).
Dismissal as Abandoned
(2) A judge of the court in chambers may thereupon dismiss the application as an abandoned application, without the attendance of the solicitor of record or the applicant.
Dismissal for Failure to Appear
(3) An applicant who fails to appear at the hearing of an application shall be deemed to have wholly abandoned the application, unless the court orders otherwise in accordance with rule 2.01.
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