PART 3Applications Generally

Marginal note:Application of Part

 This Part applies to all proceedings commenced by notice of motion, except where these Rules provide otherwise or as ordered by a judge.

Marginal note:Commencement of application

 Where the Code, or any other enactment to which the procedural provisions of the Code apply, authorizes, permits or requires that an application or motion be made to, or an order or determination be made by, a judge of or presiding in the superior court of criminal jurisdiction or a judge as defined in section 552 of the Code, other than a judge presiding at trial on an indictment, the application or motion shall be made by notice of motion in Form 1 of the schedule.

Marginal note:Contents of notice of motion

 A notice of motion must set out the following:

  • (a) the place, date and time of the hearing;

  • (b) the precise relief sought;

  • (c) the grounds to be argued, including a reference to any statutory provision or rule on which the applicant relies;

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

  • (e) where an order is required abridging or extending the time for service or filing of the notice of motion or supporting materials, a statement to that effect.

Marginal note:Service of notice of motion
  •  (1) A notice of motion, together with all supporting evidence, shall be served on all parties.

  • (2) Where there is uncertainty whether anyone not a party to an application or motion should be served, the applicant may apply ex parte to a judge for an order for directions.

  • (3) Except where otherwise provided, a notice of motion shall be served at not less than seven days before the day the application is to be heard.

  • (4) The notice of motion and supporting evidence may be served before it is filed with the Clerk.

Marginal note:Hearing in chambers of court

 An application may be heard in chambers or in court as the presiding judge directs.

Marginal note:Direction for written argument

 Where all parties agree, the Court may, on such terms as it considers just, direct that argument on an application be presented in writing rather than on the personal appearance of parties or the solicitors for the parties.

Marginal note:Consent to draft order

 The respondent may consent in writing to an order sought on the terms that are set out in the draft order and a judge, if satisfied that the relief sought by an applicant should be granted, may grant the order on the terms set out without the attendance of counsel.

Marginal note:Application by telephone or video conference
  •  (1) With consent of all parties and with leave of the judge, an application may be made by telephone or by video conference to a judge in chambers.

  • (2) A judge who hears an application by telephone or video conference may, where the judge considers that the personal attendance of the solicitors for the parties or the accused is desirable, direct that the application be heard or completed in chambers or in court with the personal attendance of the solicitors or the accused.

Marginal note:Memorandum of cases and authorities

 Unless otherwise ordered, the solicitor for each party to an application shall, not less than 48 hours before the application is to be heard, file and serve a memorandum setting out the cases, statutory provisions and any other authorities the solicitor intends to rely on at the hearing.

Marginal note:Affidavit evidence
  •  (1) Evidence on an application may be given by affidavit unless the Code or other applicable statute provides or a judge orders otherwise.

  • (2) A deponent may state in an affidavit only facts that are within the personal knowledge of the deponent or other evidence that the deponent would be permitted to testify to as a witness in court.

  • (3) An affidavit may contain statements of the deponent’s information and belief with respect to facts that are not contentious, if

    • (a) the source of the information and the fact of belief are specified in the affidavit; or

    • (b) these Rules do not provide otherwise.

Marginal note:Cross-examination on affidavit
  •  (1) Subject to the Code and any other applicable statute or rule of law, a deponent may be cross-examined on his or her affidavit

    • (a) before the return date of the application where there is sufficient time to permit a transcript of the cross-examination to be filed with the Clerk before that date; or

    • (b) before the judge presiding on the hearing of the application, with leave of that judge.

  • (2) The deponent to be cross-examined may be required to attend for cross-examination in the same manner as a party to be examined for discovery pursuant to the rules of the Court relating to civil actions.

Marginal note:Oral evidence
  •  (1) A witness may be examined or cross-examined on the hearing of an application with leave of the presiding judge.

  • (2) 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.

Marginal note:Power of judge

 A judge, before or on the hearing of an application, may dispense with the filing of a transcript or an affidavit required by these Rules and act on a statement of facts agreed to by the prosecutor and the accused.

Marginal note:Abandonment
  •  (1) An applicant who desires to abandon his or her application shall file and serve a notice of abandonment in Form 2 of the schedule that is

    • (a) signed by the solicitor of record on the application; or

    • (b) signed by the applicant and

      • (i) accompanied by an affidavit of execution verifying the signature, or

      • (ii) witnessed by an officer of the institution in which the applicant is confined.

  • (2) On the filing of a notice of abandonment, the Clerk shall note the application dismissed as abandoned without the attendance of counsel or the applicant.

  • (3) An applicant who fails to appear, either in person or by a solicitor, at the hearing of an application shall be deemed to have wholly abandoned the application.

PART 4Applications for Judicial Interim Release and Review

Marginal note:Application of Part
  •  (1) This Part applies to an application

    • (a) by an accused under subsection 520(1) or (8) of the Code, or for an order under subsection 522(2) of the Code;

    • (b) by the prosecutor under subsection 521(1) of the Code; and

    • (c) by an accused or the prosecutor at any time before trial for an order under subparagraph 523(2)(c)(ii) of the Code.

  • (2) This Part, except for the requirement to file a notice of motion in subrule 32(1), applies, with such modifications as the circumstances require, to proceedings for a review of detention under section 525 of the Code.

Marginal note:Application
  •  (1) An application shall be made by notice of motion in Form 1 of the schedule.

  • (2) A notice of motion must be accompanied by the following:

    • (a) where the applicant is the accused, an affidavit of the applicant containing the information specified in subrule (3);

    • (b) where the applicant is the accused and it is practicable to do so, an affidavit of each person proposed to serve as a surety for the accused if released, disclosing that person’s willingness to serve as a surety and the amount for which that person is to be liable;

    • (c) where the applicant seeks a review of 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 any previous review proceeding taken before a justice or judge; and

    • (d) a legible copy of each exhibit capable of reproduction that was filed on the judicial interim release hearing or in any previous review proceeding.

  • (3) The affidavit of the applicant required by subrule (2)(a) must disclose

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

    • (b) the applicant’s record of criminal convictions, if any;

    • (c) the applicant’s place of residence in the three years preceding the date of the offence charged on which release is sought and the place where the applicant proposes to reside if released;

    • (d) the applicant’s employment in the three years preceding the date of the offence charged on which release is sought and a statement indicating whether and where the applicant expects to be employed on release; and

    • (e) the conditions on which the applicant proposes that release be granted including, where practicable,

      • (i) the amount of any recognizance or deposit, and

      • (ii) the name and address of any proposed surety and the amount for which each proposed surety is to be liable.

  • (4) Where a transcript of a previous review proceeding is not available, the applicant’s affidavit must contain a summary of the material evidence given at the previous proceeding.

  • (5) 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 interest of public safety, the prosecutor may file an affidavit setting out the facts on which he or she relies, including the evidence referred to in paragraph 518(1)(c) of the Code.

 
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