Marginal note:Review of documents

 Where the judge is satisfied that the documents are likely to be relevant to an issue in the proceeding or to the competence of a witness to testify, the documents shall be produced to the judge who shall review them to determine if the documents, or any part of them, should be produced to the accused and the prosecutor.

Marginal note:Where documents not to be disclosed
  •  (1) Subject to any order made on a subsequent application, where the judge determines that documents shall not be disclosed, the documents shall be sealed and retained on file until the proceedings against the accused are completed and all levels of appeal exhausted, at which time they shall be returned by the Clerk to their original custodian.

  • (2) Where the judge determines that it is necessary, the Clerk may return the original documents to the original custodian and, where the Clerk does so, the Clerk shall retain certified copies of the documents on the file.

Marginal note:Application for further order
  •  (1) An order refusing disclosure does not prevent a subsequent application to the trial judge for such an order where there is additional or other evidence arising to support it.

  • (2) Any party to an application for disclosure may apply to the judge who made an order or to the trial judge for a variation of an order previously made.

PART 12Constitutional Issues

Marginal note:Application of Part

 This Part applies to an application in a criminal proceeding:

  • (a) to declare that an enactment of the Parliament of Canada, in whole or in part, is unconstitutional and of no force and effect;

  • (b) to declare that a rule or principle of law applicable to a criminal proceeding, in whole or in part, whether on account of subsection 8(2) or (3) of the Code or otherwise is unconstitutional and of no force and effect; and

  • (c) to stay proceedings, in whole or in part, on an indictment against an accused or for any other remedy under subsection 24(1) of the Charter or subsection 52(1) of the Constitution Act, 1982 on account of an infringement or denial of any right or freedom guaranteed by the Charter or otherwise, other than an application to exclude evidence under Part 13.

Marginal note:Time for application

 An application referred to in rule 65 shall be made 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.

Marginal note:Application

 The application shall be brought by notice of motion in Form 5 of the schedule, which must state

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

  • (b) the precise relief sought on the application;

  • (c) the grounds to be argued, including a concise statement of the constitutional issues to be raised, a statement of the constitutional principles to be argued and 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 and notice
  •  (1) Service of the notice of motion and supporting materials shall be made on

    • (a) the office of the Attorney General of Canada at Yellowknife, Northwest Territories;

    • (b) the office of the prosecutor having carriage of the proceeding; and

    • (c) such other person and on such terms as a judge may direct.

  • (2) Where applicable, the applicant shall comply with the notice requirements of section 59 of the Judicature Act, R.S.N.W.T. 1988, c. J-1.

  • (3) The notice of motion and supporting materials shall be served not less than 14 days before the date of the hearing.

Marginal note:Materials to be filed
  •  (1) In addition to any other material that may be required by the rules applicable in the proceeding in which the constitutional issue is raised, the application must be accompanied by

    • (a) a copy of the indictment to which the constitutional issue raised in the notice of motion relates;

    • (b) a transcript of any proceeding earlier taken that is material to a determination of the constitutional issue raised in the notice of motion;

    • (c) an affidavit of or on behalf of the applicant deposing to the matters set out in subrule (2); and

    • (d) a copy of any other material that may be necessary for the hearing and determination of the constitutional issue raised in the notice of motion.

  • (2) The affidavit of or on behalf of the applicant must include

    • (a) a description of the deponent’s status and the basis of his or her knowledge of the matters deposed;

    • (b) a statement of the particulars of the charge to which the application relates including, where the application alleges a breach of paragraph 11(b) of the Charter, a full statement of the history of the proceedings against the applicant before the date scheduled for trial; and

    • (c) a statement of all facts material to a just determination of the constitutional issue that are not disclosed in any other material filed in support of the application.

  • (3) A respondent who seeks to rely on material other than the material required under subrule (1) or (2) shall file affidavit material setting out the facts on which he or she relies.

Marginal note:Pre-hearing brief
  •  (1) In place of the memorandum of authorities required by rule 25, each party appearing on the hearing shall file and serve on every other party a pre-hearing brief containing

    • (a) a succinct outline of the argument the party intends to make;

    • (b) a concise statement of the principles of law on which the party relies; and

    • (c) copies of relevant cases, statutory provisions and other authorities.

  • (2) The pre-hearing brief of the applicant shall be filed and served not less than seven days before the hearing.

  • (3) The pre-hearing brief of a respondent shall be filed and served not less than three days before the hearing.

Marginal note:Intervention

 Any person interested in a proceeding between other parties may, by leave of the judge presiding over that proceeding or by order of a judge of the Court, intervene in the proceeding on such terms and conditions and with such rights and privileges as the judge may determine.

PART 13Applications to Exclude Evidence

Marginal note:Application of Part

 This Part applies to an application by an accused under subsection 24(2) of the Charter for an order excluding evidence obtained in a manner that infringed or denied a right or freedom guaranteed by the Charter.

Marginal note:Application
  •  (1) An application shall be brought by notice of motion in Form 1 of the schedule before the judge presiding at the trial of the charge against the applicant.

  • (2) The application may be brought before

    • (a) the selection of a jury, where the accused is to be tried before a jury; or

    • (b) the commencement of the trial, where the accused is to be tried before a judge.

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

Marginal note:Notice of motion

 The notice of motion shall set out

  • (a) the precise relief sought on the application;

  • (b) the grounds on which the applicant relies;

  • (c) the right or freedom alleged to be infringed or denied; and

  • (d) the nature of the evidence sought to be adduced on the application.

 
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