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

Regulations are current to 2017-10-13 and last amended on 2014-01-01. Previous Versions

Rule 24 Applications to Take Evidence on Commission[Code, s. 709]

Application of the Rule

 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

 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

 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

General Rule

 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

  •  (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 paragraph (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.

Factum Required
  • (3) Factums complying with rule 33 are required on applications under this rule.

  • SI/2014-5, s. 33(E).

Consent in Writing

 The respondent may consent in writing to the order sought upon terms included in a draft order in Form 14 filed and a judge, satisfied that the relief sought by the applicant should be granted, may grant the order on such terms without the attendance of solicitors.

Order for Examination

Contents of Order

  •  (1) Where an order is made that the evidence of a witness may be taken by a commissioner, the judge granting the order may determine:

    • (a) the time and place of the examination;

    • (b) the minimum notice period required;

    • (c) the name of the commissioner;

    • (d) the witness fee, if any, to be paid to the witness whose evidence is to be taken by the commissioner; and,

    • (e) any other matter respecting the holding of the examination including the presence of the accused and his or her solicitor of record upon such commission and payment of those expenses of the commission which are to be borne by the applicant.

Commission and Letter of Request
  • (2) Where the witness is to be examined outside Ontario, the order under subrule (1) shall, upon the request of the applicant, provide for the issuing of:

    • (a) a commission in Form 14 authorizing the taking of evidence before a named commissioner; and,

    • (b) a letter of request in Form 15 directed to the judicial authorities of the jurisdiction in which the proposed witness is to be found, requesting the issuing of such process as is necessary to compel the witness to attend and be examined before the commissioner, and the order shall be in Form 16.

  • (3) The commission and letter of request shall be prepared and issued by the clerk.

Duties of Commissioner
  • (4) A commissioner shall, to the extent that it is possible to do so, conduct the examination in the form of oral questions and answers in accordance with these rules, the law of evidence applicable to criminal trials and the terms of the commission, unless some other form of examination is required by the order or the law of the place where the examination is conducted.

  • (5) As soon as the transcript of the examination is prepared, the commissioner shall:

    • (a) return the commission, together with the original transcript and exhibits, to the clerk who issued it;

    • (b) keep a copy of the transcript and, where practicable, the exhibits; and,

    • (c) notify the parties who appeared at the examination that the transcript is complete and has been returned to the clerk who issued the commission.

Applicant to Serve Transcript
  • (6) The clerk shall send the transcript to the solicitor of record for the applicant or the applicant, as the case may be, who shall forthwith serve every other party with the transcript free of charge.

Witness to be Examined Under Oath or Upon Affirmation

Examination in Ontario

  •  (1) Before being examined, the witness shall take an oath or make an affirmation or, where the conditions of s. 16(3) of the Canada Evidence Act have been met, make a promise to tell the truth, and, where the examination is conducted in Ontario, the oath or affirmation shall be administered by the commissioner or by another person authorized to administer oaths in Ontario, or where the conditions of s. 16(3) of the Canada Evidence Act have been met, the promise to tell the truth shall be made to that person.

Examination Outside Ontario
  • (2) Where the examination is conducted outside Ontario, the oath or affirmation may be administered by or the promise to tell the truth made to the person before whom the examination is conducted, a person authorized to administer oaths in Ontario or a person authorized to take affidavits or administer oaths or affirmations in the jurisdiction where the examination is conducted.

Interpreter

General Rule

  •  (1) Where the witness does not understand the language or languages in which the examination is to be conducted or is deaf or mute, a competent and independent interpreter shall, before the witness is examined, take an oath or make an affirmation to interpret accurately the administration of the oath or affirmation and the questions to and answers of the witness.

Supply of Interpreter
  • (2) Where an interpreter is required by subrule (1) for the examination of a witness, unless the interpretation is from English to French or from French to English in which case the interpreter shall be provided by the Attorney General, the applicant shall provide an interpreter satisfactory to the parties.

 
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