Marginal note:Memorandum not required

 Notwithstanding rule 25, a memorandum of cases, statutory provisions and other authorities is not required for an application.

Marginal note:Notice

 A notice of motion and the supporting materials shall be served on the accused or prosecutor, as the case may be, in accordance with subsection 520(2) of the Code.

Marginal note:Order
  •  (1) An order directing the terms on which an accused is to be released from custody on application under this Part may be in Form 3 of the schedule.

  • (2) An order in Form 3 of the schedule is sufficient authority for a justice or the Clerk to execute the necessary undertaking or recognizance when satisfied that any condition precedent to the order has been met.

PART 5Date and Place of Trial

Marginal note:Manner of setting date and place

 The Chief Justice may, from time to time, give directions respecting the manner of setting the date and place of trials.

Marginal note:Place of trial
  •  (1) Unless the convenience of the parties and witnesses otherwise requires, a trial shall be held in the community

    • (a) at or nearest the place where the offence is alleged to have been committed; and

    • (b) in which there are adequate facilities available to house the court and jury and to conduct the trial.

  • (2) Where there is a concern that the facilities at a proposed place of trial are not adequate, a judge may direct the Clerk or Sheriff to investigate the availability of adequate facilities and make a report in accordance with subrule (3).

  • (3) The report of the Clerk or Sheriff shall

    • (a) contain a specific recommendation as to the feasibility of holding the trial at the community at or nearest the place where the offence is alleged to have been committed; and

    • (b) make a recommendation, if necessary, as to alternate places of trial.

  • (4) The Clerk or Sheriff, as the case may be, shall provide the report to the judge, to the accused, or his or her counsel, and to the prosecutor.

  • (5) Where the Clerk or Sheriff, as the case may be, recommends that the trial should not be held at the place where it would normally be held under subrule (1), a judge may entertain submissions from the accused and the prosecutor as to a suitable place for trial.

  • (6) Nothing in this rule limits the discretion of the Court to determine the place of trial.

Marginal note:Application for change of venue
  •  (1) An application for a change of venue of a trial shall be made by notice of motion in Form 1 of the schedule

    • (a) before the commencement of the trial; or

    • (b) in the case of a jury trial, not less than 21 days before the date scheduled for the selection of the jury for the trial.

  • (2) An application may be heard by the trial judge or by any other judge.

  • (3) An application must be supported by an affidavit of or on behalf of the applicant setting out with particularity the grounds relied on for the application and the proposed place of trial.

Marginal note:Place of pre-trial applications

 Notwithstanding the place of trial, an application or proceeding that may be taken before the trial may be heard at such place as the judge considers appropriate, having regard to the convenience of the Court and the parties.

PART 6Applications for Adjournment

Marginal note:Application of Part

 This Part applies to an application on behalf of an accused or the prosecutor for an order adjourning trial proceedings after a date has been fixed for trial, but before commencement of the trial.

Marginal note:Judge

 An application for an adjournment may be heard by the trial judge or by any other judge.

Marginal note:Application
  •  (1) An application shall be made by notice of motion in Form 1 of the schedule, which must be accompanied by an affidavit of or on behalf of the applicant that

    • (a) sets out the particulars of the indictment containing the charge on which trial proceedings are scheduled to commence;

    • (b) sets out the particulars of any prior application, whether on behalf of the accused or the prosecutor, to have the trial adjourned from a date fixed for trial to a subsequent date, including, where available, a transcript of the proceeding taken on the prior application;

    • (c) states all facts material to a determination of the application without disclosing any solicitor-client communications in respect of which solicitor-client privilege has not been waived; and

    • (d) states the date or dates to which it is proposed the matter be adjourned for trial.

  • (2) Notwithstanding rule 25, a memorandum of cases, statutory provisions and other authorities is not required on an application.

Marginal note:Consent adjournment
  •  (1) Where both the prosecutor and the accused agree that the trial be adjourned, they may make a joint request by a written memorandum for a judge’s fiat directing that the matter be adjourned to a date that is certain or to be set.

  • (2) The written memorandum shall set out the reasons for the request for adjournment.

PART 7Applications to Procure Attendance of Prisoners

Marginal note:Application of Part

 This Part applies to an application under subsection 527(1) of the Code to procure the attendance of a person who is confined in a prison.

Marginal note:Applicant, time of application
  •  (1) Where the person who is confined is the accused, the application shall be made by

    • (a) counsel for the accused; or

    • (b) if the accused does not have counsel, the prosecutor.

  • (2) Where the person who is confined is a witness, the application shall be made by counsel for the party that plans to call that witness.

  • (3) An application shall be made ex parte to a judge as soon as is reasonably practicable and sufficiently before attendance is required to ensure that no adjournment of the proceeding will be required for attendance and to provide adequate notice to the authorities holding and transporting the person who is confined.

  • (4) Except by leave of a judge, an application shall be made not less than four days before the day attendance is required.

Marginal note:Application

 The application shall be made by filing with the Clerk the following:

  • (a) a memorandum to the judge signed by counsel for the applicant in which reference is made to the relevant provisions of the Code;

  • (b) an affidavit of or on behalf of the applicant

    • (i) that sets out the material facts, including

      • (A) the charge and proceedings in respect of which the application is made,

      • (B) the date on which the attendance of the person who is confined is required, and

      • (C) the reasons why the attendance of the person who is confined is required, and

    • (ii) to which a copy of the warrant, if any, is attached as an exhibit; and

  • (c) a draft order for removal, in Form 4 of the schedule, containing the necessary directions.

PART 8Issuance of Subpoenas

Marginal note:Application under subsection 698(1) or 699(1) of the Code
  •  (1) A subpoena issued pursuant to subsection 698(1) or 699(1) of the Code may be issued by the Clerk under the seal of the Court on the applicant for the subpoena filing with the Clerk the following:

    • (a) a memorandum, signed by counsel for the applicant or by the applicant personally if not represented by counsel, setting out the name and address of the proposed witness and a summary of the alleged materiality of the evidence to be given; and

    • (b) a draft subpoena.

  • (2) Where the Clerk determines that it is necessary to protect the identity and address of the proposed witness for his or her personal safety, the Clerk may place the memorandum and subpoena in a sealed envelope that shall then be placed on the court file.

 
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