Filing and Service of Notice of Application
Time for Giving Notice of Application
43.04 (1) An applicant shall give notice of application in Form 1 and in accordance with rule 43.03 within 30 days after the day on which the order which is the subject of the application was made or given.
(2) Notice of application shall be given:
(a) where the application includes an application for prohibition, by personal service upon the provincial court judge, justice or justices, coroner or other person whose order is the subject of the application; and,
(b) where the applicant is Her Majesty the Queen in Right of Ontario or Canada, as represented by the Attorney General, and the respondent is an accused not represented by a solicitor, by personal service on the respondent, or, where the respondent is an accused represented by a solicitor, on the solicitor of record; or,
(c) where the respondent is Her Majesty the Queen in Right of Ontario or Canada, as represented by the Attorney General, by service upon the prosecutor in accordance with rule 5; and,
(d) by filing, or sending by prepaid registered mail to the office of the clerk of the court in the place where the application is to be heard, two copies of the notice of application, together with proof of service thereof,
and the application shall be returnable within 30 days of service.
Extension of Time
(3) A judge, either before or upon the hearing of the application may, by order, extend any time prescribed by this rule, on such terms as appear just.
Consent to Extension of Time
(4) Any time prescribed by this rule for serving or filing the notice of application or supporting materials may be extended by consent in writing endorsed on the relevant document by the party served or in such other form as a judge of the court may direct.
Materials for Use on Application
Materials to be Filed
43.05 (1) The notice of application in Form 1 shall be accompanied by:
(a) a copy of the subpoena, warrant, conviction or other order or determination which is the subject of the application;
(b) a copy of the indictment (information) containing the charge to which the application relates;
(c) where there is no or an incomplete record of the proceedings giving rise to the issuance of the subpoena, warrant or other order or determination which is the subject of the application, an affidavit of or on behalf of the applicant deposing to the matters described in subrule (2);
(d) a transcript of the proceedings giving rise to the issuance of the subpoena, warrant or other order or determination which is the subject of the application; and,
(e) a copy of any other material in the court file that is necessary for the hearing and determination of the application.
Affidavit of or on Behalf of the Applicant
(2) The affidavit of or on behalf of the applicant described in clause (1)(c) shall include:
(a) a description of the affiant’s status and the basis of his or her knowledge of the matters deposed;
(b) a statement of the particulars of the charge to which the application relates, together with a date or dates scheduled for trial or preliminary inquiry in respect of such charge;
(c) a statement of all facts material to a just determination of the application which are not disclosed in any other materials filed in support of the application;
(d) where the applicant seeks habeas corpus to obtain release from custody, the consent of the applicant to dispense with the issue of the writ of habeas corpus, the return thereto, and the presence of the applicant before the judge determining the application; and,
(e) where the applicant seeks habeas corpus to obtain release from custody, a statement that the applicant is not required to be detained in custody in respect of any other matter.
Cross-Examination on Affidavits
(3) Where an affidavit has been filed under this rule, the party opposite may cross-examine on such affidavit in accordance with rule 6.07.
Use of Agreed Statement of Facts
(4) A judge, before or upon the hearing of the application, may act upon a statement of facts in accordance with rule 6.09.
Applicant’s Application Record and Factum
(5) The applicant shall prepare, serve and file an Application Record and Factum in accordance with subrules 6.05(1) and (2) and rule 33.
Respondent’s Application Record and Factum
(6) The respondent shall prepare, serve and file an Application Record and Factum in accordance with subrule 6.05(3) and (4) and rule 33.
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