Nova Scotia Rules of Practice Respecting Applications and Hearings Concerning a Reduction in the Number of Years of Imprisonment without Eligibility for Parole

SOR/2005-10

CRIMINAL CODE

Registration 2005-01-04

Nova Scotia Rules of Practice Respecting Applications and Hearings Concerning a Reduction in the Number of Years of Imprisonment without Eligibility for Parole

The Chief Justice of the Supreme Court of Nova Scotia, pursuant to subsection 745.64(1)Footnote a of the Criminal Code, hereby makes the annexed Nova Scotia Rules of Practice Respecting Applications and Hearings Concerning a Reduction in the Number of Years of Imprisonment without Eligibility for Parole.

Halifax, Nova Scotia, December 21, 2004

The Honourable Joseph P. Kennedy
Chief Justice of the
Supreme Court of Nova Scotia

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 by an applicant pursuant to subsection 745.6(1) of the Act. (demande)

Attorney General

Attorney General means the Attorney General of Nova Scotia and includes counsel acting for the Attorney General. (procureur général)

Chief Justice

Chief Justice means the Chief Justice of the Supreme Court of Nova Scotia. (juge en chef)

judge

judge means a judge of the Supreme Court of Nova Scotia. (juge)

local prothonotary

local prothonotary means the prothonotary of the Supreme Court of Nova Scotia for the county in which a pre-hearing conference or hearing in respect of an application takes place. (protonotaire local)

presiding judge

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

prothonotary

prothonotary means the prothonotary of the Supreme Court of Nova Scotia at Halifax. (protonotaire)

Application

Application for Reduction

 An application shall be in writing in Form A set out in the schedule and shall indicate

  • (a) the applicant’s full name and date of birth;

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

  • (c) the name and place of each institution in which the applicant has been detained since the time of the applicant’s arrest for the offence that is the subject of the application and the date of entry into each of those institutions;

  • (d) the offence and the sentence in respect of which the application is made, the dates of conviction and sentencing and the place of trial;

  • (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) the grounds to be relied on in support of the application, stated precisely and concisely;

  • (g) a statement of the relief sought; and

  • (h) the applicant’s address for service.

Affidavit

 An application shall be supported by an affidavit of the applicant in Form B set out in the schedule.

Filing of Application

 An application, together with an affidavit referred to in section 3, shall be filed with the prothonotary.

Service

  •  (1) Immediately after an application is filed with the prothonotary, the applicant shall cause the application to be served on

    • (a) the Solicitor General of Canada;

    • (b) the Attorney General; and

    • (c) the officer in charge of the institution in which the applicant is detained.

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

  • (3) Proof of the service of an application may be established by filing with the prothonotary an affidavit of the person who effected the service.

  • (4) Proof of service of an application shall be filed with the prothonotary no later than seven days after the day on which the service was effected.

Delivery of Application

 An application shall be delivered by the prothonotary to the Chief Justice on receipt by the prothonotary of proof of service of the application in accordance with section 5.

Preliminary Assessment

  •  (1) On receipt of an application, the Chief Justice shall determine whether subsection 745.6(1) of the Act applies to the applicant.

  • (2) Where the Chief Justice determines that subsection 745.6(1) of the Act does not apply to the applicant, the Chief Justice shall dismiss the application.

  • (3) Where the Chief Justice determines that subsection 745.6(1) of the Act applies to the applicant, the Chief Justice shall determine, or shall designate a judge to determine, pursuant to subsection 745.61(1) of the Act, whether the applicant has shown that there is a reasonable prospect that the application will succeed.

  • (4) 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 give reasons for that determination, shall designate a judge, under paragraph 745.61(5) of the Act, to empanel a jury and shall forward the application and proof of service to that judge.

Designation of Judge

 The designation of the presiding judge shall be in writing and shall be filed with the prothonotary.

Notice

  •  (1) On receipt of the application, the presiding judge shall

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

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

    • (c) instruct the Attorney General to take the necessary steps to ensure that the applicant is present on the day and at the place determined for the pre-hearing conference.

  • (2) On receipt of a notice referred to in paragraph (1)(b), the Attorney General 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;

    • (b) the Solicitor General of Canada; and

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

  • (3) A copy of each notice referred to in paragraph (1)(b) and subsection (2) shall be filed with the prothonotary.

Pre-hearing Conference

Procedure

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

    • (a) whether the application meets the requirements of these Rules;

    • (b) the means of presenting evidence;

    • (c) whether evidence is to be provided to the other party prior to the date determined for the hearing of the application and, if so, how and when that evidence shall be provided;

    • (d) the nature and extent of any cross-examination; and

    • (e) the date and place for the hearing of the application.

  • (2) 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.

  • (3) 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.

Parole Eligibility Report

  •  (1) At a pre-hearing conference, the presiding judge may order that a parole eligibility report be prepared in respect of an applicant with regard to the criteria referred to in paragraphs 745.63(1)(a) to (e) of the Act.

  • (2) A parole eligibility report in respect of an applicant shall be prepared by a person designated by the Solicitor General of Canada and shall contain

    • (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 that have been made of the applicant; and

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

  • (3) A parole eligibility report in respect of an applicant may contain any other information relevant to the issue of parole eligibility of the applicant.

  • (4) Where the presiding judge at a pre-hearing conference orders a parole eligibility report to be prepared, the presiding judge shall adjourn the pre-hearing conference to allow for the preparation of that report.

  • (5) A parole eligibility report shall be filed with the local prothonotary.

  • (6) A local prothonotary, on receiving a parole eligibility report in respect of an applicant, shall deliver a copy of that report to the applicant and to the Attorney General.

Pre-hearing Conference Resumed

  •  (1) As soon as the presiding judge is informed that a parole eligibility report has been filed, the presiding judge shall notify the applicant and the Attorney General that the pre-hearing conference is being resumed and require their attendance at the pre-hearing conference unless both parties agree to waive the resumed pre-hearing conference.

  • (2) In setting the date for the resumption of a pre-hearing conference, the presiding judge shall allow for at least 30 days for the applicant and the Attorney General to study the parole eligibility report in respect of the applicant.

Cross-examination on Report

 Where, at the pre-hearing conference, the applicant or the Attorney General disputes any part of the parole eligibility report in respect of the applicant, the applicant or the Attorney General may require the attendance of the author of that report at the pre-hearing conference for the purposes of cross-examination.

Presiding Judge to Decide in Case of Dispute

 In the case of a dispute at the pre-hearing conference held in connection with an application, the presiding judge shall decide what parts of the parole eligibility report in respect of the applicant and what additional evidence, if any, are to be presented at the hearing of the application.

Hearing of Application

Empanelling Jury

  •  (1) The hearing of an application shall be conducted and the jury shall be empanelled in accordance with Part XX of the Act, with the modifications set out in subsection (2) and with such other modifications as the circumstances require.

  • (2) For the purposes of subsection (1), the applicant and the Attorney General are entitled to the same number of peremptory challenges as they would be entitled to if the applicant were being tried for the offence that is the subject of the application.

Powers of Presiding Judge

 At the hearing of an application, the presiding judge may at any time make orders and give any directions that the presiding judge considers necessary for the due hearing and disposition of the application, including orders and directions respecting the sufficiency of the application and the extension or reduction of time periods.

 At the hearing of an application, the presiding judge may, to the extent that the presiding judge considers necessary and desirable, admit as evidence a duly certified transcript of the proceedings at the trial and the sentencing of the applicant for the offence in respect of which the application is made.

Presentation of Evidence

 At the hearing of an application, the applicant shall present evidence first and may, if the presiding judge so permits, present rebuttal evidence after the evidence of the Attorney General is presented.

Addressing the Jury

 After the presentation of evidence at the hearing of an application, the applicant, followed by the Attorney General, shall address the jury and the applicant may reply after the address of the Attorney General to the jury.

Decision

 The jury at the hearing of an application shall base its decision on the evidence presented to it at the hearing.

Repeal

 [Repeal]

Coming into Force

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

SCHEDULE(Sections 2 and 3)

FORM A(Section 2)

CANADA

PROVINCE OF NOVA SCOTIA

SUPREME COURT OF NOVA SCOTIA

(Full name of the applicant)

IN THE MATTER OF an application for a reduction in the number of years of imprisonment without eligibility for parole pursuant to subsection 745.6(1) of the Criminal Code

To the Honourable Chief Justice of the Supreme Court of Nova Scotia:

  • 1 I, (given names and surname of the applicant), born on (applicant’s date of birth) and detained at (name and place of the institution), hereby request, pursuant to section 745.6 of the Criminal Code, that the number of years of imprisonment during which I will not be eligible for parole with respect to the sentence imposed on me on (give date of sentencing) at (give place of trial) be reduced to (give number of years).

  • 2 Since my arrest for the offence referred to in paragraph 3, I have been detained in the following institutions: (Give a COMPLETE list of the names and places of the institutions in which the applicant has been detained and specify the date of entry into each of the institutions).

  • 3 The sentence referred to in paragraph 1 was imposed on me for the following offence: (Indicate the offence for which the applicant was convicted and give the date of conviction).

  • 4 In addition to the sentence referred to in paragraph 1, as of the date of this application I am also serving the following sentences (give a list of any other sentences that the applicant is serving at the time of the application, the date and place of the imposition of the sentence and the offence in respect of which the sentence was imposed).

  • 5 The sentence imposed on me was: (give a description of the sentence) and the number of years of imprisonment without eligibility for parole was set at (give number of years). (Indicate whether the sentence has been commuted and, if so, give the date of commutation).

  • 6 In support of my application, I am relying on the following grounds: (Specify ALL grounds PRECISELY and CONCISELY).

  • 7 My address for purposes of service is: (give complete address).

Filed with the prothonotary of the Supreme Court of Nova Scotia at Halifax, Nova Scotia on (give date).

(Signature of applicant)

FORM B(Section 3)

CANADA

PROVINCE OF NOVA SCOTIA

SUPREME COURT OF NOVA SCOTIA

IN THE APPLICATION OF (Full name of applicant) made pursuant to section 745.6 of the Criminal Code

AFFIDAVIT

I, the undersigned, (give full name of the applicant), detained at (name and place of the institution), in the Province of , make oath and say as follows:

  • 1 I am the applicant.

  • 2 The facts set out in the attached application are true.

(Signature of applicant)

Sworn before me on the day

of , 20,

at in the Province

of

Commissioner of Oaths
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