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

Regulations are current to 2016-09-18 and last amended on 2014-01-01. Previous Versions

Dismissal on Reference or Application

Notice by the Registrar

  •  (1) Where it appears to the Registrar that a notice of application does not show a substantial ground for the order sought, the Registrar may refer the matter to a judge of the court for summary determination, and, where a matter is referred under this rule, a judge may, if he or she considers that the application is frivolous or vexatious and can be determined without a full hearing, dismiss the application summarily, without calling upon any person to appear for the respondent.

Application by Respondent
  • (2) Upon application by the respondent that a notice of application does not show a substantial ground for the order sought, a judge of the court may, if he or she considers that the matter is frivolous or vexatious and can be determined without a full hearing, dismiss the application summarily and cause the applicant to be advised accordingly.

Rule 7 Practice Directions

Power to Issue Practice Directions

 The Chief Justice of the Superior Court of Justice may from time to time issue practice directions not inconsistent with these rules, in relation to the supervision and direction of the sittings and the assignment of judicial duties and if issued, such directions may be made applicable to any or all regions.

Part II: Pre-Trial Proceedings [Rules 20-29]

Rule 20 Judicial Interim Release and Review Applications[Code, ss. 520(1), (8); 521(1), (9); 522(1); 523(2)(c)(ii), (3)]

Application of Rule

 This rule applies to applications:

  • (a) by an accused under subsections 520(1) and (8) and 522(1) of the Code;

  • (b) by the prosecutor under subsections 521(1) and (9) of the Code; and,

  • (c) by an accused or the prosecutor at any time prior to the trial, under subparagraph 523(2)(c)(ii) or subsection 523(3) of the Code.

To Whom Made

 Applications under rule 20.01 shall be made to a judge of the court in the county, district or region in which the accused is to be tried on the indictment to which the application relates.

Contents of Notice

  •  (1) The notice of application in Form 1 shall also state whether the accused is to be present at the hearing of the application.

  • (2) Where the notice of application in Form 1 states that the accused is to be present at the hearing of the application, the application shall be accompanied by an affidavit which shall contain:

    • (a) a statement as to the place of confinement at which the accused is presently incarcerated;

    • (b) particulars of the date upon which the hearing of the application is anticipated to take place, together with a statement of whether the anticipated hearing date conflicts with any other proceedings in relation to the accused person;

    • (c) a statement of the accused’s intention to be present at the hearing of the application; and,

    • (d) a statement as to the name of the police force or police officer into whose custody it is proposed that the accused be transferred for the purpose of effecting the accused’s attendance at the hearing of the application,

    together with a draft order in Form 13A, and a judge may grant an order requiring that the accused be present at the hearing of the application ex parte and without the attendance of a solicitor of record.

Service of Notice

General Rule

  •  (1) The notice of application under rule 20.03 and supporting materials under rule 20.05 shall be served on the accused or prosecutor, as the case may be, in accordance with rule 5, at least 2 clear days prior to the date fixed for the hearing of the application, unless under s. 520(2) of the Code, the prosecutor otherwise consents.

Manner of Service
  • (2) Service of the notice of application and supporting materials shall be made in accordance with rule 5.

Filing with Proof of Service
  • (3) The notice of application and supporting materials, together with proof of service thereof, shall be filed in the office of the clerk of the court in the place where the application is to be heard, at least 1 day before the date fixed for the hearing of the application.

Materials for Use on Application

Materials to be Filed

  •  (1) The notice of application in Form 1 under rule 20.03 shall be accompanied by:

    • (a) where the applicant is the accused, the affidavit of the applicant, in accordance with rule 4.06, containing the matters required under subrule (2);

    • (b) where the applicant is the accused and it is practicable to do so, the affidavit of the current or prospective employer by whom it is proposed that the accused be employed upon released;

    • (c) where the applicant is the accused and it is practicable to do so, the affidavit of any person whom it is proposed shall serve as a surety for the accused, if released, disclosing his or her willingness to serve as a surety and the amount for which each is to be liable;

    • (d) where the applicant seeks to review an order earlier made, a transcript of the proceedings on the judicial interim release hearing under section 515 or 522 of the Code, as the case may be, and of previous review proceedings, if any, taken before a justice or judge; and,

    • (e) a legible copy of any exhibits, capable of reproduction, which were filed on the judicial interim release hearing and in any previous review proceedings.

Affidavit of the Applicant
  • (2) The affidavit of the applicant required by paragraph (1)(a) shall disclose:

    • (a) the particulars of the charge on which release is sought and any other charge outstanding against the applicant, together with the date or dates scheduled for trial or preliminary inquiry in respect of such charges;

    • (b) the applicant’s places of abode in the 3 years preceding the date of the offence charged and in respect of which release is sought, together with the place where the applicant proposes to reside if released;

    • (c) the applicant’s employment in the 3 years preceding the date of the offence charged in respect of which release is sought, together with whether and where the applicant expects to be employed upon release;

    • (d) the form of order upon which the applicant proposes that release be granted; and,

    • (e) where the applicant proposes that release be by giving an undertaking with conditions or upon entering into a recognizance with sureties, deposit or conditions, where practicable, the terms and conditions of the order sought, including the amount of any recognizance or deposit, as well as the names of any proposed surety and the amount for which each proposed surety is to be liable.

  • (3) Where the applicant is the prosecutor or where, as respondent, the prosecutor desires to assert that the detention of the accused is necessary in the public interest, and to rely on material other than required to be filed under subrule (1), the prosecutor may file an affidavit in accordance with rule 4.06 setting out the facts upon which reliance is placed, including the matters referred to in paragraph 518(1)(c) of the Code.

Factum Not Required
  • (4) No factum is required for the purposes of applications under this rule.

  • SI/2014-5, s. 33(E).

Order Directing Release

Form of Order

  •  (1) An order directing the terms upon which an accused is to be released from custody upon application under this rule may be in Form 10.

Sufficiency of Order
  • (2) An order in Form 10 shall be sufficient authority for a justice to prepare the necessary undertaking or recognizance when satisfied that any condition precedent thereto has been met.

Consent in Writing
  • (3) The respondent may consent in writing to the order sought, upon terms included in a draft order in Form 10A, and a judge may grant such order without the attendance of solicitors.

Rule 21 Release of Exhibits for Scientific Testing[Code s. 605(1)]

Application of the Rule

 This rule applies to applications on behalf of the accused or the prosecutor for the release of an exhibit for the purpose of a scientific or other test or examination under s. 605(1) of the Code.

To Whom Application Made

 Applications under rule 21.01 shall be made to a judge of the court in the county, district or region in which the accused is to be or is being tried on the indictment to which the application relates.

Service of Notice

General Rule

  •  (1) Service of the notice of application under this rule and the supporting materials required by rule 21.04 shall be made on the prosecutor or accused, as the case may be, in accordance with rule 5, at least 2 clear days prior to the date fixed for the hearing of the application.

Filing with Proof of Service
  • (2) The notice of application and supporting materials, together with proof of service thereof, shall be filed in the office of the clerk of the court in the place where the application is to be heard, at least 1 day before the date fixed for the hearing of the application.

Material for Use on Application

Materials to be Filed

  •  (1) The notice of application in Form 1 under this rule shall be accompanied by:

    • (a) an affidavit by or on behalf of the applicant deposing to the matters described in subrule (2); and,

    • (b) an affidavit of the person or an authorized representative of the agency whom it is proposed shall conduct the test or examination deposing to the matters described in subrule (3).

Affidavit of or on Behalf of the Applicant
  • (2) The affidavit of or on behalf of the applicant required by paragraph (1)(a) shall contain:

    • (a) the 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 or did commence;

    • (b) particulars of the exhibit which it is sought to have ordered released for the purpose of a scientific or other test or examination;

    • (c) a description of the relevance of the exhibit, and the proposed examination or testing, to the issues raised at trial;

    • (d) a statement of the manner in which and steps by which the applicant will endeavour to ensure the safeguarding of the exhibit and its preservation for use at trial;

    • (e) where the application has not been brought until at or after the commencement of the trial proceedings, a statement of the reasons why it was not earlier brought and whether, if granted, the testing or examination procedure will disrupt or delay the trial proceedings; and,

    • (f) whether any issue is being or will be taken by the applicant to the continuity of the exhibits being tested or examined, and whether prior or subsequent to such examination or testing as is proposed.

Affidavit of or on Behalf of Examiner
  • (3) The affidavit of the person or an authorized representative of the agency whom it is proposed shall conduct the test or examination, required under paragraph (1)(b), shall contain:

    • (a) a statement of the capacity in which the deponent makes the affidavit, whether as examiner or authorized representative of the examining agency;

    • (b) where the affiant is an authorized representative of the examining agency, a statement of the scope of his authority and the basis and extent of his knowledge of the testing or examination techniques to be employed in the proposed examination;

    • (c) a detailed description of the nature, purpose, extent and duration of the testing or examination proposed including, where practicable, the scientific techniques, procedures and equipment to be used;

    • (d) a description of the location or facility in which the testing or examination is to be conducted;

    • (e) a reasonable estimate of the length of time required to complete the test or examination proposed;

    • (f) a statement of whether the examiner, testing agency or applicant will permit attendance by duly qualified representatives of the respondent at or during the examination or testing or furnish the results thereof to such persons;

    • (g) a statement whether, within a reasonable time after the completion of such testing or examination, the applicant shall advise the respondent whether it is proposed to adduce the results thereof at trial;

    • (h) where the examiner or testing agency is not amenable to the process of the court, a statement whether such person who will examine or test the exhibit will attend to give evidence at trial or upon commission, if ordered; and,

    • (i) a description of the steps and procedures to be taken to ensure the safeguarding of the exhibit and its preservation, in an unaltered state, for use at the trial.

Factum May be Required
  • (4) A judge may require that factums complying with rule 33 be filed on applications under this rule.

  • SI/2014-5, s. 33(E).
 
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