Criminal Proceedings Rules for the Superior Court of Justice (Ontario) (SI/2012-7)

Regulations are current to 2017-11-20 and last amended on 2014-01-01. Previous Versions

Rule 6 Applications

Application of the Rule

  •  (1) Where the Criminal Code or other federal enactment to which the procedural provisions of the Criminal Code apply, authorizes, permits or requires that an application or motion be made to or an order or determination made by a judge of or presiding in the superior court of criminal jurisdiction, or a judge as defined in s. 552 of the Criminal Code, other than a judge presiding at trial upon an indictment, the application shall be commenced by a notice of application in Form 1.

  • (2) Rules 6.01 to 6.11 apply to all proceedings commenced by a notice of application, except where these rules expressly provide otherwise, or a judge of this court orders otherwise.

Applications -- To Whom to be Made

 Applications shall be made to a judge of the court in the county, district or region where the criminal proceedings to which the application relates are being or are to be heard.

Content of Notice

 Every notice of application in Form 1 shall state:

  • (a) the place and date of hearing in accordance with rule 6.02 and any other applicable rule;

  • (b) the precise relief sought;

  • (c) the grounds to be argued, including a reference to any statutory provision or rule to be relied upon;

  • (d) the documentary, affidavit and other evidence to be used at the hearing of the application; and,

  • (e) whether any order is required abridging or extending the time for service or filing of the notice of application or supporting materials required under these rules.

Service of Notice

General Rule re Service

  •  (1) The notice of application shall be served on all parties in accordance with rule 5 and, where there is uncertainty whether anyone else should be served, the applicant may make a motion without notice to a judge for an order for directions.

Filing Proof of Service
  • (2) The notice of application in Form 1 and any other supporting materials required by the Code, other statutes or these rules, or ordered by a judge of the court, together with proof of service, shall be filed in the office of the clerk of the court in the place where the application is to be heard, not later than thirty (30) days before the date of the hearing of the application, unless otherwise ordered by a judge of the court, or unless subrule 20.04(1) applies.

  • SI/2014-5, s. 6(E).

Material for Use on Applications

Application Record

  •  (1) Unless otherwise ordered by a judge of the court or otherwise provided by these rules, an applicant shall serve on every other party and file an application record in accordance with subrule (2), not later than thirty (30) days before the date of the hearing of the application.

  • (2) The applicant’s application record shall contain, in consecutively numbered pages arranged in the following order:

    • (a) a table of contents describing each document, including each exhibit, by its nature and date and, in the case of an exhibit, by exhibit number or letter;

    • (b) a copy of the notice of application;

    • (c) a copy of the indictment to which the application relates;

    • (d) a copy of all affidavits and other material served by the applicant and any party other than the respondent for use on the application;

    • (e) a list of all relevant transcripts of evidence in chronological order, but not necessarily the transcripts themselves; and

    • (f) a copy of any other material in the court file that is necessary for the hearing of the application.

Respondent’s Application Record
  • (3) Where the respondent seeks to rely on material other than that filed by the applicant, the respondent shall serve on every other party and file a respondent’s application record in accordance with subrule 6.05(4), not later than ten (10) days before the date of the hearing of the application.

  • (4) The respondent’s application record shall contain, in consecutively numbered pages arranged in the following order:

    • (a) a table of contents describing each document, including each exhibit, by its nature and date and in the case of an exhibit, by exhibit number or letter; and

    • (b) a copy of any material to be used by the respondent on the application and not included in the application record,

    and the respondent’s application record shall be filed, with proof of service, in the court office where the application is to be heard, not later than ten (10) days before the date of the hearing of the application.

Documents May be Filed as Part of Record
  • (5) Any documents served by a party for use on an application may be filed, together with proof of service, as part of the party’s application record and need not be filed separately if the record is filed within the time prescribed for filing the notice or other material.

Transcript of Evidence
  • (6) A party who intends to refer to a transcript of evidence at the hearing of an application shall file a copy of the transcript as provided by rule 4.08.

Books of Authorities
  • (7) Unless otherwise ordered by a judge of the court, books of authorities in accordance with rule 32 are required and shall be served and filed within the time limits described in subrules (1) and (3).

Factums
  • (8) Unless otherwise ordered by a judge of the court, or required by these rules, factums are not required for applications made under this rule.

  • (9) Where a judge orders or these rules require that factums be served and filed on an application, the factums shall comply with rule 33 and be served and filed within the time limits described in subrules (1) and (3), unless otherwise ordered by a judge of the court.

  • SI/2014-5, ss. 7, 32(E).

The Hearing of Applications

Place of Hearing

  •  (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

  •  (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 subrule 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 subrule 6.05(3).

Cross-Examination on Affidavit
  • (4) Subject to the 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 subrules 6.05(1) and (3), unless otherwise ordered by a judge of the court.

  • SI/2014-5, ss. 8, 32(E).

Evidence by Examination of Witnesses

 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

 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

  •  (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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