New Brunswick Rules of Practice Respecting Reduction in the Number of Years of Imprisonment without Eligibility for Parole

SOR/2004-264

CRIMINAL CODE

Registration 2004-11-24

New Brunswick Rules of Practice Respecting Reduction in the Number of Years of Imprisonment without Eligibility for Parole

The Chief Justice of The Court of Queen's Bench of New Brunswick, pursuant to subsection 745.64(1)Footnote a of the Criminal Code, hereby makes the annexed New Brunswick Rules of Practice Respecting Reduction in the Number of Years of Imprisonment without Eligibility for Parole.

Moncton, New Brunswick, November 19, 2004

David D. Smith

Chief Justice of The

Court of Queen's Bench of

New Brunswick

Interpretation

 The following definitions apply in these Rules.

Act

Act means the Criminal Code. (Loi)

applicant

applicant means a person who makes an application and includes, according to the context, counsel acting for that person. (requérant)

application

application means an application for a reduction in the number of years of imprisonment without eligibility for parole made under subsection 745.6(1) of the Act. (demande)

Attorney General

Attorney General means the Attorney General of New Brunswick and includes counsel acting for the Attorney General. (procureur général)

Chief Justice

Chief Justice means the Chief Justice of The Court of Queen's Bench of New Brunswick. (juge en chef)

clerk

clerk means the clerk of The Court of Queen's Bench of New Brunswick for the judicial district in which the sentence in respect of which the application is made was imposed. (greffier)

judge

judge means a judge of The Court of Queen's Bench of New Brunswick. (juge)

presiding judge

presiding judge means the judge designated by the Chief Justice under subsection 745.61(5) of the Act to empanel a jury. (juge qui préside)

Application

 An application shall be in writing and shall include the following information:

  • (a) the given names and surname of the applicant, any other names the applicant may have used and the applicant's date of birth;

  • (b) the name and place of the institution where the applicant is detained;

  • (c) the offence for which the applicant was convicted, the date of the conviction and the sentence that was imposed;

  • (d) the length of time that the applicant has been incarcerated for that offence;

  • (e) any sentence, in addition to the sentence in respect of which the application is made, that the applicant is serving at the time of the application and the date and place of the imposition of that sentence and the offence in respect of which the sentence was imposed;

  • (f) all grounds relied on in support of the application;

  • (g) a statement of the relief sought;

  • (h) the address for service of the applicant; and

  • (i) an outline of any evidence that the applicant intends to present in support of the application.

Filing

 An applicant shall file the application and any additional material required under paragraphs 745.61(1)(b) and (c) of the Act with the clerk.

Service

  •  (1) Immediately after the application and any additional material have been filed with the clerk, the applicant shall serve them on

    • (a) the Solicitor General of Canada for notice only and not as a party;

    • (b) the Attorney General;

    • (c) the officer in charge of the institution in which the applicant is being detained for notice only and not as a party; and

    • (d) any other person or institution as directed by the Chief Justice.

  • (2) Service of an application may be effected by registered mail, in which case it is deemed to have been effected on the tenth day after the day on which it was mailed.

  • (3) Proof of service of an application may be established by an affidavit of the person who effected the service or by any other means satisfactory to the Chief Justice.

  • (4) An applicant shall file proof of service of an application with the clerk no later than 10 days after the day on which service was effected.

Delivery to Chief Justice

 On receipt of the application, any additional material and proof of service, the clerk shall deliver them to the Chief Justice.

Preliminary Assessment

  •  (1) The Chief Justice or judge designated under subsection 745.61(1) of the Act shall determine whether section 745.6 of the Act applies to the applicant.

  • (2) Where the Chief Justice or judge determines that section 745.6 of the Act does not apply to the applicant, the Chief Justice or judge shall dismiss the application.

  • (3) Where the Chief Justice or judge determines that section 745.6 of the Act applies to the applicant, the Chief Justice or judge shall order that a parole eligibility report be prepared in respect of the applicant with regard to the criteria set out in paragraphs 745.63(1)(a) to (e) of the Act and that the report be filed with the clerk and delivered to the applicant and the Attorney General within the period specified in the order.

Parole Eligibility Report

  •  (1) A parole eligibility report of an applicant shall be prepared by a person designated by the Solicitor General of Canada and shall contain the following:

    • (a) a summary of the applicant's social and family background;

    • (b) a summary of the applicant's classification and discipline evaluations;

    • (c) a summary of the regular reports on the applicant's conduct;

    • (d) a summary of any psychological and psychiatric assessments of the applicant that have been made; and

    • (e) any other information relevant to the complete description of the applicant's character and conduct.

  • (2) A parole eligibility report may contain any other information relevant to the issue of parole eligibility of the applicant.

  • (3) The author of the parole eligibility report shall file it with the clerk within the period specified in the order under subsection 6(3).

  • (4) The clerk shall deliver a copy of the parole eligibility report to the applicant and the Attorney General within the period specified in the order under subsection 6(3).

Judicial Screening

  •  (1) On receipt of the parole eligibility report, the clerk shall deliver it to the Chief Justice or judge who made the order under subsection 6(3).

  • (2) The Chief Justice or judge shall determine the date and place of a hearing under subsection (8), and shall send a written notice of the date and place of the hearing to the Solicitor General of Canada and the Attorney General.

  • (3) A copy of each written notice referred to in subsection (2) shall be filed with the clerk.

  • (4) On receipt of a notice under subsection (2), the Solicitor General of Canada shall cause a written notice of the date and place of the hearing to be sent by registered mail or any other acceptable means of service to

    • (a) the applicant; and

    • (b) the officer in charge of the institution where the applicant is being detained.

  • (5) The Solicitor General of Canada shall file a copy of each notice referred to in subsection (4) with the clerk.

  • (6) The applicant and the Attorney General may attend a hearing under subsection (8) and be heard, but shall not present any evidence other than evidence referred to in paragraph 745.61(1)(b) or (c) of the Act.

  • (7) Where the applicant wishes to attend a hearing under subsection (8), the officer in charge of the institution in which the applicant is being detained shall take the necessary steps to ensure that the applicant is present on the day and at the place determined for the hearing.

  • (8) At the hearing, the Chief Justice or judge shall determine, in accordance with subsections 745.61(1) and (2) of the Act, whether the applicant has shown that there is a reasonable prospect that the application will succeed.

  • (9) Where the Chief Justice or judge determines that the applicant has not shown that there is a reasonable prospect that the application will succeed, the Chief Justice or judge shall dismiss the application with reasons.

  • (10) Where the Chief Justice or judge determines that the applicant has shown that there is a reasonable prospect that the application will succeed, the Chief Justice or judge shall forward the application, additional material, proof of service and parole eligibility report to the presiding judge and shall give reasons for that determination.

Notice of Pre-hearing Conference

  •  (1) On receipt of an application, additional material, proof of service and parole eligibility report under subsection 8(10), the presiding judge shall

    • (a) subject to subsections (2) and (3), determine the date and place of the pre-hearing conference to be held in connection with the application; and

    • (b) send a written notice of the date and place of the pre-hearing conference to the Solicitor General of Canada and the Attorney General.

  • (2) The date for the pre-hearing conference shall be not earlier than 30 days after the day on which the parole eligibility report is delivered to the applicant and the Attorney General.

  • (3) The place for the pre-hearing conference shall be within the judicial district in which the sentence in respect of which the application is made was imposed.

  • (4) A copy of each notice referred to in paragraph (1)(b) shall be filed with the clerk.

  • (5) On receipt of a notice under paragraph (1)(b), the Solicitor General of Canada shall cause a written notice of the date and place of the pre-hearing conference to be sent by registered mail or any other accepted means of service to

    • (a) the applicant; and

    • (b) the officer in charge of the institution where the applicant is being detained.

  • (6) The Solicitor General of Canada shall file a copy of each notice referred to in subsection (5) with the clerk.

  • (7) The officer in charge of the institution where the applicant is being detained shall take the necessary steps to ensure that the applicant is present on the day and at the place determined for the pre-hearing conference.

Procedure at Pre-hearing Conference

  •  (1) At a pre-hearing conference held in connection with an application, the presiding judge shall determine

    • (a) the means of presenting evidence;

    • (b) the names of witnesses, if any, to be called by the parties; and

    • (c) the date and place for the hearing of the application, which place must be within the judicial district in which the sentence in respect of which the application is made was imposed.

  • (2) A certified copy of the transcript of the proceedings at the trial and sentencing of the applicant is admissible as evidence at a pre-hearing conference.

  • (3) The presiding judge shall rule on the admissibility of evidence at a pre-hearing conference.

  • (4) At a pre-hearing conference, the applicant and the Attorney General shall inform the presiding judge of any evidence they intend to present and of the manner in which they intend to present it.

  • (5) Where, at a pre-hearing conference, the applicant or the Attorney General disputes any part of the parole eligibility report, the applicant or the Attorney General may, with leave of the presiding judge, require the attendance of the author of that report at the pre-hearing conference for the purposes of cross-examination.

  • (6) In the case of a dispute at a pre-hearing conference, the presiding judge shall decide what parts of the parole eligibility report and what additional evidence, if any, are to be presented at the hearing of the application.

  • (7) The presiding judge may adjourn a pre-hearing conference as the presiding judge considers appropriate and resume the pre-hearing conference on a day and at a place determined by the presiding judge, except that the place must be within the judicial district in which the sentence in respect of which the application is made was imposed.

Hearing of Application

  •  (1) Not later than 30 days before the date set for the hearing of an application, the applicant and the Attorney General shall ensure that full disclosure of all documents has been made to the other party.

  • (2) The officer in charge of the institution where the applicant is being detained shall take the necessary steps to ensure that the applicant is present on the day and at the place determined for the hearing of the application.

  • (3) Except as otherwise provided in these Rules, Part XX of the Act applies with such modifications as the circumstances require to the empanelling of the jury referred to in subsection 745.61(5) of the Act and to the hearing of an application.

  • (4) No person other than the applicant and the Attorney General shall present evidence at the hearing of an application.

  • (5) The applicant shall present evidence first and may, if the presiding judge so permits, present rebuttal evidence after the Attorney General has presented evidence.

  • (6) A certified copy of the transcript of the proceedings at the trial and sentencing of the applicant is admissible as evidence at the hearing of an application.

  • (7) At the hearing of an application, the presiding judge shall rule on the admissibility of evidence.

  • (8) Where, at any time before the commencement of the hearing of an application, the presiding judge determines as a matter of law that subsection 745.6(1) of the Act does not apply to the applicant, the presiding judge shall dismiss the application with reasons.

  • (9) Where, at any time after the commencement of the hearing of an application, the presiding judge determines as a matter of law that subsection 745.6(1) of the Act does not apply to the applicant, the presiding judge shall dismiss the application with reasons and discharge the jury.

  • (10) After the evidence is presented at the hearing of an application, the applicant, followed by the Attorney General, may address the jury.

  • (11) The presiding judge shall address the jury after the addresses, if any, to the jury by the applicant and the Attorney General.

Orders and Directions

  •  (1) The Chief Justice, the judge designated under subsection 745.61(1) of the Act or the presiding judge may make any orders or give any directions that he or she considers necessary in the circumstances for the due hearing and disposition of an application, including, without restricting the generality of the foregoing, orders or directions with respect to

    • (a) the extension or reduction of a time period;

    • (b) the sufficiency of an application and any affidavit relating to an application;

    • (c) the service and the proof of service of any document;

    • (d) the date and place of the hearing of an application, which place must be within the judicial district in which the sentence in respect of which the application is made was imposed;

    • (e) the summoning of additional witnesses and the production of documents not produced by either party;

    • (f) the adjournment of the hearing of an application, which adjournment must take place within the judicial district in which the sentence in respect of which the application is made was imposed; and

    • (g) any other matter not provided for in these Rules.

  • (2) In addition to any other order that the Chief Justice, judge designated under subsection 745.61(1) of the Act or presiding judge may make, he or she may make any or any combination of the following orders:

    • (a) an order requiring an applicant or the Attorney General to file a general outline of the evidence that party intends to present at the hearing of the application;

    • (b) an order requiring that an applicant be brought before the Court for the hearing of the application or for any purpose contemplated by these Rules; or

    • (c) an order excluding an applicant from any proceeding under these Rules where the Chief Justice, judge or presiding judge is of the opinion that the applicant's conduct at the proceeding is such as to disrupt the proceeding.

  • (3) Section 527 of the Act applies with such modifications as the circumstances require for the purpose of any order made under paragraph (2)(c).

Repeal

 The New Brunswick Rules of Practice Respecting Reduction in the Number of Years of Imprisonment without Eligibility for ParoleFootnote 1 are repealed.

Coming into Force

 These Rules come into force on the day on which they are registered.

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