PART 16Extraordinary Remedies

Marginal note:Orders available
  •  (1) The Court may make an order in the nature of mandamus, prohibition, certiorari, habeas corpus or quo warranto on application by notice of motion in Form 1 of the schedule.

  • (2) Where an order referred to in subrule (1) is made, a writ of mandamus, prohibition, certiorari, habeas corpus or quo warranto need not be issued, but all necessary provisions must be included in the judgment or order.

Marginal note:Service
  •  (1) The notice of motion referred to in rule 94 shall be served on every person who appears to be interested or likely to be affected by the proceeding.

  • (2) The Court may require that the notice of motion be served on any person not previously served.

  • (3) Where an order is sought to quash a conviction, order, warrant or inquisition, the notice of motion shall be served not less than seven days before the return date of the motion on

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

    • (b) the justice or justices who made the conviction or order or issued the warrant or the coroner who made the inquisition.

  • (4) Where a judge of the Territorial Court must be served, it is sufficient to serve the Clerk or a deputy clerk of the Territorial Court.

  • (5) Where a justice or a coroner must be served, it is sufficient to serve the administrative officer of the office to which the justice or coroner belongs.

  • (6) Any person not served with the notice of motion may show that he or she is affected by the proceeding and, where the Court is satisfied he or she is so affected, the person may be permitted to take part in the proceeding as though served.

Marginal note:Application - certiorari

 An application for an order in the nature of certiorari shall be filed and served within six months after the conviction, order, warrant or inquisition to which it relates.

Marginal note:Endorsement on application
  •  (1) A notice in the following form, addressed to the justice or justices, coroner, administrative officer or Clerk, as the case may be, must be endorsed on a notice of motion requesting an order in the nature of certiorari:

    “You are hereby required forthwith after service of this notice to return to the Clerk of the Supreme Court at (community) the conviction (or order or warrant or inquisition) to which this notice refers and the information, evidence and exhibits filed, if any, together with this notice.

    Date:

    To:

    Solicitor for the Applicant”
  • (2) A copy of rule 98 must appear on or be annexed to the notice of motion served on the justice or justices, coroner, administrative officer or Clerk from whom the return is required.

  • (3) All things required by subrule (1) to be returned to the Clerk shall, for the purposes of the application for an order in the nature of certiorari, be deemed to be part of the record.

Marginal note:Return of evidence and exhibits
  •  (1) On receiving a notice of motion endorsed in accordance with subrule 97(1), the justice or justices, coroner, administrative officer or clerk shall return forthwith to the Clerk the conviction, order, warrant or inquisition, as the case may be, together with the information, the evidence and exhibits filed, if any, and the notice served on the justice or justices, coroner, administrative officer or Clerk with a certificate endorsed in the following form:

    “Pursuant to the accompanying notice I hereby return to the Honourable Supreme Court the following papers and documents:

    • (a) the conviction — or order or warrant or inquisition —;

    • (b) the information and the warrant issued on the information; and

    • (c) the evidence taken at the hearing and all exhibits filed.

    And I hereby certify to the Honourable Supreme Court that I have enclosed in this return all the papers and documents in my custody and power relating to the matter referred to in the notice of motion.”

  • (2) The certificate required by subrule (1) has the same effect as a return to a writ of certiorari.

  • (3) Where a record of the proceeding has been transmitted to the Clerk as required by law, other than as required by subrule (1), the Clerk shall, in lieu of the certificate set out in subrule (1), certify to the fact and the date of the transmission.

  • (4) Where the material referred to in subrule (1) or the record of the proceeding referred to in subrule (3) has not been received by the Clerk before the application is heard, the Clerk shall prepare a certificate of the fact.

  • (5) The Court may dispense with the return of the evidence or exhibits or any part of them.

Marginal note:Ex parte application

 Notwithstanding rules 95 to 98, the Court, on the ex parte application of the prosecutor, may quash a conviction or warrant made without lawful authority.

Marginal note:Mandamus

 No order in the nature of mandamus may be granted unless at the time of application an affidavit is produced in which some person deposes on oath that the application is made at his or her instance as prosecutor, and the name of that person must appear in the order as the person at whose instance it is made.

Marginal note:No action against person obeying order

 No action or proceeding may be commenced or prosecuted against any person in respect of anything done in obedience to an order in the nature of mandamus issued by the Court or any judge.

Marginal note:Time in which duty must be performed

 In an order in the nature of mandamus, the Court may compel a defendant or respondent to perform the duty in question

  • (a) either forthwith or on the expiration of such time as the Court specifies; and

  • (b) on such terms as the Court may specify.

Marginal note:Application - habeas corpus
  •  (1) An application for an order in the nature of habeas corpus shall be served not less than three days before the return date of the application on

    • (a) the authority responsible for the place of detention; and

    • (b) the office of the Attorney General responsible for the prosecution or conviction, as the case may be.

  • (2) A copy of rule 104 shall appear on or be annexed to the application.

Marginal note:Return to the Court

 The authority responsible for the place of detention shall, within 24 hours after receiving an application under rule 103, forward to the Clerk a copy of all causes of the prisoner’s detention.

Marginal note:Order before return made under rule 104
  •  (1) On the argument of an application for an order in the nature of habeas corpus, the Court may, if the Court considers it just, direct an order to be drawn up for the prisoner’s discharge without waiting for the return of the information required by rule 104.

  • (2) An order made under subrule (1) is a sufficient warrant for any jailer, peace officer or other authorized person for the prisoner’s discharge.

Marginal note:Ex parte order

 Where a judge considers it necessary, the judge, on an application made ex parte, may grant an order for the immediate issue of an order in the nature of habeas corpus.

Marginal note:Application - prohibition

 An application for an order in the nature of prohibition shall not operate as a stay of the proceedings sought to be prohibited except by order of a judge.

PART 17Summary Conviction Appeals

Marginal note:Definitions

 The definitions in this section apply in this Part, unless the context in these Rules requires otherwise.

adjudication

adjudication includes

  • (a) in an appeal under subparagraph 813(a)(i) or (ii) of the Code, a conviction or order made against or a sentence passed against a defendant;

  • (b) in an appeal under subparagraph 813(b)(i) or (ii) of the Code, an order that stays proceedings on or dismisses an information or a sentence passed against a defendant;

  • (c) in an appeal under subparagraph 813(a)(iii) or (b)(iii) of the Code, a verdict; and

  • (d) in an appeal under subsection 830(1) of the Code, a conviction, judgment or verdict of acquittal or other final order or determination of a summary conviction court. (décision)

appeal

appeal means an appeal under Part XXVII of the Code from or against an adjudication in a proceeding before a summary conviction court; (appel)

appeal court

appeal court means the Supreme Court of the Northwest Territories; (Cour d’appel)

appellant

appellant includes

  • (a) in an appeal under paragraph 813(a) of the Code, the defendant;

  • (b) in an appeal under paragraph 813(b) of the Code, the informant, the Attorney General or the Attorney General’s agent; and

  • (c) in an appeal under subsection 830(1) of the Code, the person who has filed the appeal. (appelant)

trial court

trial court means the summary conviction court from or against whose adjudication an appeal is being taken. (tribunal de première instance)

 
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