Marginal note:Application under paragraph 699(2)(b) of the Code
  •  (1) An application under paragraph 699(2)(b) of the Code for the issuance of a subpoena to a person out of the Northwest Territories shall be made ex parte to a judge.

  • (2) The application must contain the following:

    • (a) a memorandum to the judge outlining the order sought;

    • (b) an affidavit of or on behalf of the applicant setting out the material facts relied on, including the alleged materiality of the evidence to be given;

    • (c) a statement by counsel for the applicant confirming that he or she has canvassed the possibility of admissions with counsel for the respondent or that other measures have been taken so as to avoid the necessity of personal attendance by the intended witness;

    • (d) a fiat endorsed on the memorandum to the judge for the judge’s signature; and

    • (e) a draft subpoena.

  • (3) On execution of the fiat by a judge, the Clerk shall issue the subpoena.

  • (4) The subpoena must have added to it the following recital:

    “And whereas an Order was made under paragraph 699(2)(b) of the Criminal Code by the Honourable Justice of the Supreme Court of the Northwest Territories on the day of , authorizing issuance of this subpoena;”

PART 9Applications to Quash a Subpoena

Marginal note:Application of Part

 This Part applies to an application to quash a subpoena.

Marginal note:Time for application
  •  (1) An application shall be made by notice of motion in Form 1 of the schedule to any judge of the Court before the commencement of trial or to the trial judge.

  • (2) The Court may waive the requirement for written notice where the Court considers it necessary and expedient to do so.

Marginal note:Application

 The notice of motion shall be accompanied by an affidavit of or on behalf of the applicant setting out

  • (a) the material grounds supporting the application;

  • (b) the interest of the applicant in the proceeding; and

  • (c) the precise terms of the order sought.

Marginal note:Evidence
  •  (1) The judge hearing an application may permit evidence to be given orally or otherwise as the judge considers necessary to determine the issues.

  • (2) The party who issued the subpoena shall disclose to the judge hearing the application, by affidavit or otherwise, the purpose for which the witness is required to testify and the likelihood of the witness giving material evidence.

PART 10Applications Respecting Crown Disclosure

Marginal note:Application of Part

 This Part applies to an application by an accused to compel the disclosure by the prosecutor of information or documents within the possession or control of the prosecutor.

Marginal note:Application for disclosure
  •  (1) An application shall be made by notice of motion to

    • (a) the trial judge, where one has been designated; or

    • (b) any judge of the Court before the commencement of trial, where the trial judge has not been designated.

  • (2) In the case of an application brought after the commencement of trial, the trial judge may waive the requirement of written notice.

  • (3) The judge hearing the application may permit evidence to be given by affidavit or orally or otherwise as the judge considers necessary to determine the issues.

  • (4) The hearing shall be conducted as a voir dire, and may be conducted in camera if the presiding judge considers it necessary in the interests of justice to do so.

Marginal note:Where prosecutor alleges information, documents should not be disclosed
  •  (1) Where an application for disclosure is brought and the prosecutor alleges that information or documents should not be disclosed on the grounds of privilege, relevance or otherwise, the prosecutor shall prepare and file an inventory of the information or documents for reference at the hearing of the application.

  • (2) The inventory to be prepared by the prosecutor must

    • (a) individually designate each item of information or document;

    • (b) provide a summary description of the nature and date of the material contained in each item; and

    • (c) state the grounds on which the prosecutor relies to withhold disclosure.

Marginal note:Order
  •  (1) The judge hearing the application may compel the production of all or any of the information or documents for review in private.

  • (2) In order to assist in the review, the judge may conduct all or part of the review in camera with only counsel present.

PART 11Production of Third Party Documents

Marginal note:Application of Part
  •  (1) This Part applies generally to an application to compel the production of documents in the possession or control of parties other than the prosecutor.

  • (2) Subject to any special statutory provisions, this Part applies, with such modifications as the circumstances require, to production of third party documents.

Marginal note:Application for production
  •  (1) An application shall be made by notice of motion in Form 1 of the schedule supported by an affidavit of or on behalf of the applicant setting out with particularity the documents sought and the specific grounds for production.

  • (2) The requirement for written notice of motion and an affidavit may be waived by the presiding judge where the judge considers it necessary in the interests of justice.

Marginal note:Notice of application
  •  (1) The notice of motion and a copy of any supporting affidavit shall be served on

    • (a) the prosecutor;

    • (b) the person, agency or other body in possession of the documents sought to be disclosed;

    • (c) the person to whom the documents relate; and

    • (d) any other person who, to the knowledge of the applicant, may have a reasonable expectation of privacy in respect of the documents.

  • (2) In addition to serving notice, the applicant shall obtain and serve on the custodian of the documents a subpoena requiring that the documents be sealed and brought to the hearing of the application.

Marginal note:Hearing
  •  (1) The application shall be heard by

    • (a) the trial judge, where one has been designated; or

    • (b) any judge of the Court, where the trial judge has not been designated.

  • (2) The judge hearing the application may permit evidence to be given by affidavit or orally or otherwise as the judge considers necessary to determine the issues.

  • (3) The hearing shall be conducted as a voir dire, and may be conducted in camera if the presiding judge considers it necessary in the interests of justice to do so.

Marginal note:Persons entitled to present evidence, argument

 The custodian of the documents, the person to whom the documents relate and any person who has a privacy interest in the documents are entitled to present evidence and argument as to the issues raised by the application, but they are not compellable witnesses on the hearing of the application at the instance of either the accused or the prosecutor.

 
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