Criminal Procedure Rules of the Court of Queen’s Bench of New Brunswick (SI/2015-81)

Rule 1 - Definitions, Application, Interpretation, and Forms

Definitions

1.01 The following definitions apply in these Rules.

Application

Application means a proceeding commenced by Notice of Application whether described in the enabling legislation or another authority as an application or a motion. (requête)

Clerk’s office

Clerk’s office means the office of the Clerk of the Court in the judicial district where the proceeding is to be commenced or is pending or is being heard, as the case may be. (greffe)

Court

Court means the Court of Queen’s Bench of New Brunswick and includes a judge. (Cour)

judge

judge means a Justice of the Court. (juge)

Application of these Rules

1.02 These Rules apply to all criminal proceedings within the jurisdiction of the Court.

Interpretation

• 1.03 (1) These Rules are intended to provide for the just determination of every criminal proceeding, and shall be liberally construed to secure simplicity and uniformity in procedure, fairness in administration, the elimination of unjustifiable expense and the avoidance of delay.

• 1.03(2) Where a matter is not provided for in the Criminal Code or these Rules, the procedure shall be as specified by the Court or determined by reference to the Rules of Court of New Brunswick.

Party Not Represented by Counsel

1.04 Unless otherwise indicated, where an accused is not represented by counsel but acts in person, anything that these Rules require counsel to do shall be done by the accused and anything that these Rules permit counsel to do may be done by the accused.

Application of the Criminal Code Provisions

1.05 The interpretation sections of the Criminal Code apply to these Rules.

Practice Notes

1.06 The Chief Justice of the Court of Queen’s Bench of New Brunswick may from time to time issue practice notes not inconsistent with these Rules and such practice notes shall apply to the same extent as these Rules.

Forms

1.07 The forms prescribed in the attached Appendix of Forms shall be used where applicable and with such variations as the circumstances require.

Rule 2 – Non-Compliance with the Rules

Effect of Non-compliance with the Rules

2.01 A failure to comply with these Rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity, and the Court:

• (a) may grant all necessary amendments or other relief in accordance with Rule 2.02, on such terms as are just, to secure the just determination of the real matters in dispute or,

• (b) only where and as necessary in the interests of justice, may set aside the proceeding or a step, document or order in the proceeding in whole or in part.

Court May Dispense With Compliance

• 2.02 (1) The Court may, only where and as necessary in the interests of justice:

  • (a) dispense with compliance with any rule at any time or substitute a process that would produce an equally just result,

  • (b) extend or abridge any time requirements prescribed by these Rules on such terms as are just.

• 2.02(2) An order extending time may be made before or after the expiration of the time prescribed.

Rule 3 - Court Documents

Format

3.01 Every document in a proceeding shall be printed, typewritten, or reproduced legibly on good quality paper.

Contents

3.02 Every document in a proceeding shall contain:

• (a) the name of the Court, judicial district and the court file number;

• (b) the style of the proceeding in accordance with Form 1 (Notice of Application), but in a document other than a record, order or report, where there are more than two parties to the proceeding, a short title showing the names of the first party on each side followed by the words “and others” may be used;

• (c) its date;

• (d) the name, address and telephone number of counsel filing the document or, where a party is not represented by counsel, the name of the party, address for service and telephone number and, where available, that party’s e-mail address and facsimile transmission (fax) number.

Certified Copies of Court Documents

3.03 At the request of a person entitled to see and to receive a copy of a document in a court file, a certified copy of the document shall be delivered upon payment of any prescribed fee.

Notice to be in Writing

3.04 Where these Rules require notice to be given, it shall be given in writing.

Filing of Documents

Place of Filing

• 3.05 (1) All documents required to be filed in a proceeding shall be filed in the Clerk’s office, except where they are filed in the course of a hearing or where these Rules provide otherwise.

• 3.05(2) An affidavit, transcript, record or brief to be used on the hearing of an Application shall be filed in the Clerk’s office.

Filing by Leaving in Clerk’s Office or by Mail

• 3.05(3) A document may be filed by leaving it at or mailing it to the Clerk’s office.

Date of Filing Where Filed by Mail

• 3.05(4) Where a document is filed by mail, the date of the filing stamp of the Clerk’s office on the document shall be deemed to be the date of its filing.

Where Document Filed by Mail Not Received

• 3.05(5) Where a Clerk’s office has no record of the receipt of a document alleged to have been filed by mail, the document shall be deemed not to have been filed.

Affidavits

Contents

• 3.06 (1) An affidavit shall be confined to a statement of facts within the personal knowledge of the deponent or to other evidence that the deponent could give if testifying as a witness in court; but the affidavit may contain statements as to information and belief of the deponent with respect to facts which are not contentious, if the source of the deponent’s information and belief therein are specified in the affidavit.

For a Corporation

• 3.06(2) Where these Rules require an affidavit to be made by a party and the party is a corporation, the affidavit may be made for the corporation by an officer, director, or employee of the corporation.

Rule 4 – Service of Documents

General Rules for Manner of Service

Notices of Application and Other Documents

• 4.01 (1) A Notice of Application or other document may be served personally, or by an alternative to personal service set out herein, unless these Rules or an order of the Court otherwise specifies.

• 4.01(2) Any document that is not required to be served personally or by an alternative to personal service

  • (a) shall be served on a party who has counsel of record by serving counsel in a manner provided in Rule 4.03 (2); and

  • (b) may be served on a party not represented by counsel or on a person who is not a party,

    • (i) by mailing a copy of the document to the last address for service provided by the party or person or, if no such address has been provided, to the party’s or person’s last known address together with an Acknowledgment of Receipt Card set out in Form 3A, or

    • (ii) by personal service or by an alternative to personal service.

Personal Service

• 4.02 (1) Where a document is to be served personally, the service shall be made

  • (a) on an individual, by leaving a copy of the document with the individual;

  • (b) on any corporation, by leaving a copy of the document with an officer, director or agent of the corporation, or with a person at any place of business of the corporation who appears to be in control or management of the place of business;

  • (c) on the Attorney General of Canada, by leaving a copy of the document with an employee at the office of the Crown Prosecutor retained by the Attorney General of Canada having carriage of the proceedings, or by means of telephone transmission of a facsimile of the document in accordance with Rule 4.03 (3); and

  • (d) on the Attorney General of New Brunswick, by leaving a copy of the document with an employee at the office of the Crown Prosecutor having carriage of the proceedings, or by means of telephone transmission of a facsimile of the document in accordance with Rule 4.03 (3).

• 4.02(2) A person effecting personal service of a document need not produce the original document or have it in his or her possession.

Alternatives to Personal Service

Where Available

• 4.03 (1) Where these Rules or an order of the Court permit service by an alternative to personal service, service shall be made in accordance with this Rule.

• 4.03(2) Service on a party who has counsel may be made by leaving a copy of the document with counsel, or an employee in counsel’s office, but service under this Rule is effective only if counsel or the said employee endorses on the document or a copy of it an acceptance of service and the date of acceptance.

• 4.03(3) Service of a document on counsel of a party may be made by telephone transmission of a facsimile of the document in accordance with Rule 4.03 (4).

• 4.03(4) A document that is served by telephone transmission shall include a cover page indicating the

  • (a) sender’s name, address and telephone number;

  • (b) name of counsel to be served;

  • (c) date and time of transmission;

  • (d) total number of pages transmitted, including the cover page;

  • (e) telephone number from which the document is transmitted; and name and telephone number of a person to contact in the event of transmission problems;

  and shall include an acknowledgement of receipt card in Form 3B; but service under this Rule shall be considered effective only if counsel endorses the acknowledgement of receipt card and returns it to the serving party.

• 4.03(5) A document may be served electronically on a party who has counsel by transmitting the document by electronic mail, but service under this Rule shall be considered effective only if counsel or a duly authorized employee replies electronically acknowledging receipt of the transmission and of the document.

• 4.03(6) By accepting service counsel shall be deemed to represent to the Court that counsel has the authority of his or her client to accept service.

• 4.03(7) Service on an accused who is not represented by counsel must be made by personal service unless the Court:

  • (a) approves an alternative method of service; or

  • (b) dispenses with service.

Where Document Does Not Reach Person Served

4.04 Even though a person has been served with a document in accordance with these Rules, the person may show on Application to set aside the consequences of default, for an extension of time or in support of a request for an adjournment, that the document

• (a) did not come to his or her notice; or

• (b) came to his or her notice only at some time later than when it was served or is deemed to have been served.

Validating Service

4.05 Where a document has been served in a manner other than one authorized by these Rules or an order, the Court may make an order validating the service where the Court is satisfied that

• (a) the document came to the notice of the person to be served; or

• (b) the document was served in such a manner that it would have come to the notice of the person to be served, except for the person’s own attempts to evade service.

Proof of Service

Affidavit of Service

• 4.06 (1) Service of a document may be proved by an affidavit of the person who served it in Form 4A or 4B as the case may be.

Counsel’s Admission or Acceptance

• 4.06(2) Counsel’s written admission or acceptance of service is sufficient proof of service and need not be verified by affidavit.

Substituted Service

• 4.07 (1) Where it appears to the Court that it is impractical for any reason to effect prompt service of a document in accordance with these Rules, the Court may make an order

  • (a) for substituted service; or

  • (b) dispensing with service, if the Court considers it necessary in the interests of justice.

• 4.07(2) Where the Court makes an order for substituted service, it shall specify in the order when service in accordance with the order shall be deemed to be effective.

Rule 5 – Applications

• 5.01 (1) In any criminal proceeding where an application or motion is authorized by statute or otherwise it shall be commenced by a Notice of Application in Form 1.

• 5.01(2) A Notice of Application shall be filed with the Clerk’s office.

Third Party

• 5.01(3) If it appears that the interest of a third party may be affected by a possible outcome, the applicant shall notify the third party of the Application as though they were a party to the Application.

• 5.01(4) An applicant may apply ex parte to a judge for directions where there is uncertainty whether anyone not a party to an Application should be served.

Intervener

• 5.01(5) Any person interested in a proceeding between other parties may, by leave of the Court, intervene therein upon such terms and conditions and with such rights and privileges as the Court may determine.

Content of Notice

• 5.02 (1) Every Notice of Application in Form 1 shall state:

  • (a) the place and date of hearing;

  • (b) the precise relief sought;

  • (c) with reasonable particularity, the grounds to be argued including 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 the Notice

Generally

• 5.03 (1) The Notice of Application shall be served on all parties to the proceeding together with all supporting evidence.

Third Party

• 5.03(2) Where, at any point, it appears that a third party not a party to the proceedings has an interest in the possible outcome of an Application that is worthy of protection, the Court shall order the third party be served and given opportunity to be joined to the proceeding.

Minimum Notice Period

• 5.03(3) Except where otherwise expressly provided by the Criminal Code or these Rules, the Notice of Application shall be served and filed with the Court at least 45 days before the date of the hearing of the Application or the date set for trial, which ever date comes first.

Materials for Use on Applications

Documents May be Filed as Part of Record

• 5.04 (1) 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

• 5.04(2) A party who intends to refer to a transcript of evidence at the hearing of an Application shall file a copy of the transcript with the Court at least 10 days before the hearing of the Application or the date set for trial whichever comes first in the case of the applicant and 5 days in the case of the respondent or intervener.

Pre-Hearing Brief

• 5.04(3) The applicant shall file with the Clerk’s office a written brief, along with an electronic version, at least 10 days before the hearing of the Application. The responding party, including any intervener, shall file with the Clerk’s office a written brief, along with an electronic version, and a list of materials to be used at the hearing, at least 5 days before the hearing of the Application. A party shall also provide a written copy of their brief to the opposite party within the same time periods.

Contents of Pre-Hearing Brief

• 5.04(4) The pre-hearing brief shall contain in consecutively numbered paragraphs:

  • (a) a succinct outline of the facts the party intends to establish,

  • (b) a concise statement of the issues to be dealt with by the Court,

  • (c) a concise statement of the principles of law on which the party relies and citation of relevant statutory provisions and leading authorities,

  • (d) a concise statement of the relief sought by the party,

  • (e) Schedule A consisting of a list of authorities in the order referred to in the brief, and

  • (f) Schedule B consisting of the text of all relevant provisions of Acts and Regulations (or copies of the relevant parts of the Act or Regulation may be filed and served with the brief).