Rule 24 Applications to Take Evidence on Commission
[Code, s. 709]
Application of the Rule
24.01 This rule applies to applications on behalf of an accused or the prosecutor for an order appointing a commissioner to take the evidence of a witness under section 709 of the Code.
To Whom Application Made
24.02 Applications made under rule 24.01 shall be made to a judge of the court in the county, district or region in which the trial is being or is scheduled to be held, either before or as soon as is reasonably practicable after the trial date has been fixed.
Contents of Notice
24.03 A notice of application in Form 1 under rule 24.01 shall include a statement whether the presence of the accused is required upon the taking of the evidence and whether the proceedings on commission are to be videotaped.
Service of Notice
24.04 Service of the notice of application under rule 24.03 and the supporting materials required by rule 24.05 shall be made upon the prosecutor or accused, as the case may be, at least 30 days before the date fixed for the hearing of the application and not less than 60 days before the date fixed for trial upon the indictment.
Materials for Use on Application
Materials to be Filed
24.05 (1) The notice of application in Form 1 under rule 24.03 shall be accompanied by:
(a) an affidavit by or on behalf of the applicant and deposing to the matters described in subrule (2);
(b) where the application is made under subparagraph 709(a)(i) of the Code, the affidavit of a duly qualified medical practitioner describing the nature and extent of the illness and the disability arising therefrom or, where the prosecutor and accused consent, the report in writing of such practitioner; and,
(c) a draft order which, in cases where the person is to be examined outside Ontario, shall provide for the issuing of a commission in Form 14 authorizing the taking of evidence before a named commissioner and a letter of request directed to the judicial authorities of the jurisdiction in which the witness is to be found, requesting the assistance of such process as is necessary to compel the witness to attend and be examined before the named commissioner.
Affidavit by or on Behalf of the Applicant
(2) The affidavit by or on behalf of the applicant required by subrule (1)(a) shall contain:
(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 of their anticipated length;
(b) a statement of all material facts relied upon to justify the belief that an order should be given including a statement:
(i) whether the requested jurisdiction will or is likely to respond favourably to a request for judicial assistance,
(ii) whether the manner of response, if favourable, is compatible with the manner in which evidence is taken in criminal proceedings in Canada,
(iii) whether the circumstances of the witness’ residence out of Canada render return to Canada for trial likely or unlikely, thereby affecting the necessity for the taking of evidence on commission,
(iv) whether the witness has relevant and material evidence to give, receivable in accordance with the rules of evidence applicable in the Canadian proceedings,
(v) whether the witness is willing to attend to give evidence on commission and, if not, the means whereby his or her attendance may be compelled or otherwise ensured,
(vi) whether there will be unfair prejudice to the party opposite by the order of a commission,
(vii) whether there will be any serious disruption of the trial proceedings by the taking of such evidence, and,
(viii) whether the trier of fact will be disadvantaged to the prejudice of the parties or either of them, by being unable to observe the demeanour of the witness;
(c) if known, a statement of the time and place at which the proposed examination is to be conducted;
(d) if known, a statement of the identity of the proposed commissioner and of his or her consent to act in that capacity;
(e) a description of the manner in which it is proposed to conduct and record the examination, including whether an interpreter will be required and whether it is proposed that the proceedings be videotaped; and,
(f) a statement whether the presence of the accused is sought, permitted or required and, where applicable, what arrangements, if any, are proposed in respect of his or her attendance or detention in custody.
(3) Factums complying with rule 33 are required on applications under this rule.
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