Rule 34 Hearing of Pre-Trial and Other Applications
Order and Manner of Applications
34.01 The presiding judge shall determine the order in which pre-trial and other applications shall be heard and the manner in which the evidence in support of any application shall be presented.
Preliminary Assessment of Application
34.02 The presiding judge may conduct a preliminary assessment of the merits of any pre-trial or other application on the basis of the materials filed, and, if satisfied that there is no reasonable prospect that the application could succeed, may dismiss the application without further hearing or inquiry.
Dismissal for Non-Compliance with Rules
34.03 Where an applicant has failed to comply with the rules governing an application, the application shall not be heard unless the presiding judge grants leave, after taking into account all the circumstances of the case, including but not limited to:
(a) the nature of the applicant’s non-compliance with these rules;
(b) the right of the applicant to raise issues, including issues relating to the admissibility of evidence and to have those issues determined on their merits;
(c) the right of other parties to have a reasonable opportunity to respond to any issues raised by an applicant;
(d) the need for an expeditious determination of pre-trial applications and the orderly conduct of trial proceedings;
(e) the history of the pre-trial applications and the proceedings;
(f) any notice given to other parties about the issues raised in the pre-trial applications;
(g) the apparent merits of the application as reflected in any materials filed and any submissions made in the proceeding;
(h) any prejudice to any other party in the proceeding;
(i) the nature of the issues raised and the extent of their impact on the course of the trial or other proceeding;
(j) any explanation advanced for failure to comply with these rules; and,
(k) any other factors the judge considers relevant to his or her determination.
Limitations on Oral Argument
34.04 The presiding judge may impose reasonable limits on oral submissions on any pre-trial or other application.
34.05 Where the presiding judge is satisfied that the interests of justice require it, she or he may order that the parties deliver written argument about any issue to be heard and determined as a pre-trial application.
Rule 35 Dangerous and Long-Term Offender Applications
Application of Rule
35.01 This rule applies when the prosecutor indicates an intention to apply to have an offender declared a dangerous offender or a long-term offender under Part XXIV of the Code.
- SI/2014-5, s. 19.
Pre-Hearing Conference Report Form
35.02 (1) If the prosecutor indicates an intention to apply to have the offender declared a dangerous offender or long-term offender, the prosecutor and solicitor of record shall complete questions 1 to 7 of Form 23 prior to his or her application.
(2) If the court grants the application under subsection 752.1(1) of the Code, the prosecutor and solicitor of record shall complete questions 8 to 30 of Form 23 prior to the proceedings described in sections 753 or 753.1 of the Code, as the case may be.
- SI/2014-5, s. 20.
Case Supervision Required
35.03 (1) Upon the prosecutor’s indication to apply to have the offender declared a dangerous offender or long-term offender under Part XXIV of the Code, the sentencing hearing shall be subject to case supervision under section 482.1 of the Code and rule 29.
(2) The case supervision judge shall be the trial judge, the judge designated to conduct the dangerous offender or long-term offender application if different than the trial judge, or a judge designated by the Regional Senior Judge.
- SI/2014-5, s. 21.
Powers of Case Supervision Judge
35.04 The case supervision judge may:
(a) establish or revise any schedule for pre-hearing applications;
(b) secure the parties’ agreement, or give directions, about the order in which pre-hearing applications shall be heard;
(c) secure the parties’ agreement, or give directions, about the manner in which evidence will be presented on the pre-hearing applications and at the hearing;
(d) secure the parties’ agreement to, or give directions about, a judge other than the sentencing judge hearing and determining pre-hearing applications;
(e) secure the parties’ agreement, or give directions about, the manner in which decisions made by a judge other than the sentencing judge on pre-hearing applications are to be incorporated into the record or other proceedings;
(f) secure the parties’ agreement, or give directions, about the materials to be filed in support of and in response to any pre-hearing applications;
(g) establish a schedule for the service and filing of any materials required for any pre-hearing applications;
(h) secure the parties’ agreement to, or give directions about, admissions of fact or other agreements about issues of fact, and the attendances of witnesses on issues not in dispute;
(i) require the prosecutor to provide a list of the names of the persons who will, or may, be called as witnesses for the prosecution;
(j) secure the parties’ agreement, or give directions, about any interpreters or technological equipment required in the proceedings, and make arrangements through court personnel to ensure such requirements are met;
(k) secure the parties’ agreement to, or give directions about, the manner in which evidence may be presented at the application; and,
(l) identify contested issues of fact and law and explore methods to resolve them.
Part IV: Summary Conviction Appeals and Extraordinary Remedies [Rules 40-49]
Rule 40: Summary Conviction Appeals[Code, ss. 813, 830(1)]
40.01 In this rule, and in rules 41 and 42, unless the context requires otherwise,
(i) in appeals under paragraph 813(a) of the Code,
(ii) in appeals under paragraph 813(b) of the Code,
(iii) in appeals under subsection 830(1) of the Code, a conviction, judgment, verdict of acquittal, or verdict of not criminally responsible on account of mental disorder or of unfit to stand trial or other final order or determination of a summary conviction court; (décision)
appeal means an appeal from or against an adjudication in proceedings before a summary conviction court pursuant to Part XXVII of the Code; (appel)
- appeal court
appeal court means the Superior Court of Justice, and in the case of appeals under section 813 of the Code, means the Superior Court of Justice in the region or county where the adjudication under appeal was made; (cour d’appel)
(i) in appeals under paragraph 813(a) of the Code, the defendant,
(ii) in appeals under paragraph 813(b) of the Code, the informant or the Attorney General or his or her agent,
(iii) in appeals under subsection 830(1) of the Code, a party in proceedings before a summary conviction court under Part XXVII of the Code or the Attorney General; (appelant)
- Attorney General
Attorney General means either the Attorney General for the Province of Ontario where the prosecution was instituted or conducted by the Attorney General of Ontario, or, where the prosecution was initiated or conducted at the instance of the Government of Canada, the Attorney General of Canada; (procureur général)
- convicted person
convicted person includes a person who has been granted a discharge under section 730 of the Code; (personne condamnée)
counsel means a barrister or solicitor, in respect of the matters or things that barristers or solicitors, respectively, are authorized by the law of a province to do or perform in relation to legal proceedings, who represents a party to the appeal, and, unless otherwise indicated in these rules where a party to the appeal has no counsel, includes that party; (procureur)
file means file with the clerk of the appeal court; (déposer)
- inmate appeal
inmate appeal means an appeal by a person who at the time the notice of appeal is given is in custody, and is not represented by counsel for the appeal; (appel d’un détenu)
judge means a judge of the appeal court; (juge)
- summary conviction court
summary conviction court means a person who has jurisdiction in the region or county where the proceedings under Part XXVII of the Code have arisen and who:
(i) is given jurisdiction over the proceedings by the enactment under which the proceedings are taken,
(ii) is a justice or a provincial court judge, where the enactment under which the proceedings are taken does not expressly give jurisdiction to any person or class of persons, or
(iii) is a provincial court judge, where the enactment under which the proceedings are taken gives jurisdiction in respect thereof to two or more justices; (cour des poursuites sommaires)
- trial court
trial court means the summary conviction court from or against whose adjudication an appeal is being taken; (tribunal de première instance)
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