Vol. 149, No. 17 — August 26, 2015

Registration

SI/2015-81 August 26, 2015

CRIMINAL CODE

Criminal Procedure Rules of the Court of Queen’s Bench
of New Brunswick

AUTHORITY

The Court of Queen’s Bench of New Brunswick, under subsections 482(1) and (3) of the Criminal Code, with the concurrence of a majority of the judges thereof present at a meeting held on September 5, 2014, makes the following Criminal Procedure Rules of the Court of Queen’s Bench of New Brunswick numbered 1 to 12, that are to come into effect upon publication in the Canada Gazette as required by subsection 482(4) of the Criminal Code.

DAVID D. SMITH
Chief Justice of the Court of Queen’s Bench
of New Brunswick

CRIMINAL PROCEDURE RULES

COURT OF QUEEN’S BENCH OF NEW BRUNSWICK

INDEX

AUTHORITY

RULE 1 – DEFINITIONS, APPLICATION, INTERPRETATION, AND FORMS

Rule 1.01 – Definitions

Rule 1.02 – Application of these Rules

Rule 1.03 – Interpretation

Rule 1.04 - Party Not Represented by Counsel

Rule 1.05 – Application of the Criminal Code Provisions

Rule 1.06 – Practice Notes

Rule 1.07 - Forms

RULE 2 – NON-COMPLIANCE WITH THE RULES

Rule 2.01 – Effect of Non-compliance with the Rules

Rule 2.02 – Court May Dispense With Compliance

RULE 3 – COURT DOCUMENTS

Rule 3.01 – Format

Rule 3.02 – Contents

Rule 3.03 – Certified Copies of Court Documents

Rule 3.04 – Notice to be in Writing

Rule 3.05 – Filing of Documents

Rule 3.06 – Affidavits

RULE 4 – SERVICE OF DOCUMENTS

Rule 4.01 – General Rules for Manner of Service

Rule 4.02 – Personal Service

Rule 4.03 – Alternatives to Personal Service

Rule 4.04 – Where Document Does Not Reach Person Served

Rule 4.05 – Validating Service

Rule 4.06 – Proof of Service

Rule 4.07 – Substituted Service

RULE 5 – APPLICATIONS

Rule 5.01 – Applications

Rule 5.02 – Content of Notice

Rule 5.03 – Service of the Notice

Rule 5.04 – Materials for Use on Applications

Rule 5.05 – The Hearing of Applications

Rule 5.06 – Evidence on Applications

Rule 5.07 – Abandonment of Applications

Rule 5.08 – Dismissal for Failure to Appear

Rule 5.09 – Application at Trial

RULE 6 – PRE-TRIAL CONFERENCE

Rule 6.01 (1) – Under subsection 625.1(1) of the Criminal Code

Rule 6.01 (2) – Under subsection 625.1(2) of the Criminal Code

Rule 6.02 – Pre-Trial Conference Submission

Rule 6.03 – Nature of the Pre-trial Conference

Rule 6.04 – Other Pre-trial Conferences

Rule 6.05 – Repeal

RULE 7 – STATUS HEARING

RULE 8 – COURT ATTENDANCE

Rule 8.01 – Procuring Attendance of Prisoners

Rule 8.02 – Obtaining a Subpoena

Rule 8.03 – Counsel of Record

RULE 9 – APPLICATIONS FOR DECLARATIONS OF UNCONSTITUTIONALITY

RULE 10 – SUMMARY CONVICTION APPEALS

RULE 11 – APPLICATIONS FOR MANDAMUS, CERTIORARI AND PROHIBITION

RULE 12 – TRANSITIONAL

APPENDIX OF FORMS

Form 1 – Notice of Application

Form 2 – Affidavit

Form 3A – Acknowledgment of Receipt Card

Form 3B – Acknowledgment by Counsel of Service (BY FAX)

Form 4A – Affidavit of Service

Form 4B – Certificate of Service by Sherriff

Form 5 – Notice of Abandonment

Form 6 – Pre-Trial Conference Submission

RULE 1 - DEFINITIONS, APPLICATION, INTERPRETATION, AND FORMS

Definitions

1.01 The following definitions apply in these Rules.

“Application” means a proceeding commenced by Notice of Application whether described in the enabling legislation or another authority as an application or a motion. (requête)

“Clerk’s office” means the office of the Clerk of the Court in the judicial district where the proceeding is to be commenced or is pending or is being heard, as the case may be. (greffe)

“Court” means the Court of Queen’s Bench of New Brunswick and includes a judge. (Cour)

“judge” means a Justice of the Court. (juge)

Application of these Rules

1.02 These Rules apply to all criminal proceedings within the jurisdiction of the Court.

Interpretation

1.03 (1) These Rules are intended to provide for the just determination of every criminal proceeding, and shall be liberally construed to secure simplicity and uniformity in procedure, fairness in administration, the elimination of unjustifiable expense and the avoidance of delay.

1.03 (2) Where a matter is not provided for in the Criminal Code or these Rules, the procedure shall be as specified by the Court or determined by reference to the Rules of Court of New Brunswick.

Party Not Represented by Counsel

1.04 Unless otherwise indicated, where an accused is not represented by counsel but acts in person, anything that these Rules require counsel to do shall be done by the accused and anything that these Rules permit counsel to do may be done by the accused.

Application of the Criminal Code Provisions

1.05 The interpretation sections of the Criminal Code apply to these Rules.

Practice Notes

1.06 The Chief Justice of the Court of Queen’s Bench of New Brunswick may from time to time issue practice notes not inconsistent with these Rules and such practice notes shall apply to the same extent as these Rules.

Forms

1.07 The forms prescribed in the attached Appendix of Forms shall be used where applicable and with such variations as the circumstances require.

RULE 2 – NON-COMPLIANCE WITH THE RULES

Effect of Non-compliance with the Rules

2.01 A failure to comply with these Rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity, and the Court:

• (a) may grant all necessary amendments or other relief in accordance with Rule 2.02, on such terms as are just, to secure the just determination of the real matters in dispute or,
• (b) only where and as necessary in the interests of justice, may set aside the proceeding or a step, document or order in the proceeding in whole or in part.

Court May Dispense With Compliance

2.02(1) The Court may, only where and as necessary in the interests of justice:

• (a) dispense with compliance with any rule at any time or substitute a process that would produce an equally just result,
• (b) extend or abridge any time requirements prescribed by these Rules on such terms as are just.

2.02(2) An order extending time may be made before or after the expiration of the time prescribed.

RULE 3 - COURT DOCUMENTS

Format

3.01 Every document in a proceeding shall be printed, typewritten, or reproduced legibly on good quality paper.

Contents

3.02 Every document in a proceeding shall contain:

• (a) the name of the Court, judicial district and the court file number;
• (b) the style of the proceeding in accordance with Form 1 (Notice of Application), but in a document other than a record, order or report, where there are more than two parties to the proceeding, a short title showing the names of the first party on each side followed by the words “and others” may be used;
• (c) its date;
• (d) the name, address and telephone number of counsel filing the document or, where a party is not represented by counsel, the name of the party, address for service and telephone number and, where available, that party’s e-mail address and facsimile transmission (fax) number.

Certified Copies of Court Documents

3.03 At the request of a person entitled to see and to receive a copy of a document in a court file, a certified copy of the document shall be delivered upon payment of any prescribed fee.

Notice to be in Writing

3.04 Where these Rules require notice to be given, it shall be given in writing.

Filing of Documents

Place of Filing

3.05(1) All documents required to be filed in a proceeding shall be filed in the Clerk’s office, except where they are filed in the course of a hearing or where these Rules provide otherwise.

3.05(2) An affidavit, transcript, record or brief to be used on the hearing of an Application shall be filed in the Clerk’s office.

Filing by Leaving in Clerk’s Office or by Mail

3.05(3) A document may be filed by leaving it at or mailing it to the Clerk’s office.

Date of Filing Where Filed by Mail

3.05(4) Where a document is filed by mail, the date of the filing stamp of the Clerk’s office on the document shall be deemed to be the date of its filing.

Where Document Filed by Mail Not Received

3.05(5) Where a Clerk’s office has no record of the receipt of a document alleged to have been filed by mail, the document shall be deemed not to have been filed.

Affidavits

Contents

3.06(1) An affidavit shall be confined to a statement of facts within the personal knowledge of the deponent or to other evidence that the deponent could give if testifying as a witness in court; but the affidavit may contain statements as to information and belief of the deponent with respect to facts which are not contentious, if the source of the deponent’s information and belief therein are specified in the affidavit.

For a Corporation

3.06(2) Where these Rules require an affidavit to be made by a party and the party is a corporation, the affidavit may be made for the corporation by an officer, director, or employee of the corporation.

RULE 4 – SERVICE OF DOCUMENTS

General Rules for Manner of Service

Notices of Application and Other Documents

4.01(1) A Notice of Application or other document may be served personally, or by an alternative to personal service set out herein, unless these Rules or an order of the Court otherwise specifies.

4.01(2) Any document that is not required to be served personally or by an alternative to personal service

• (a) shall be served on a party who has counsel of record by serving counsel in a manner provided in Rule 4.03 (2); and
• (b) may be served on a party not represented by counsel or on a person who is not a party,
  • (i) by mailing a copy of the document to the last address for service provided by the party or person or, if no such address has been provided, to the party’s or person’s last known address together with an Acknowledgment of Receipt Card set out in Form 3A, or
  • (ii) by personal service or by an alternative to personal service.

Personal Service

4.02(1) Where a document is to be served personally, the service shall be made

• (a) on an individual, by leaving a copy of the document with the individual;
• (b) on any corporation, by leaving a copy of the document with an officer, director or agent of the corporation, or with a person at any place of business of the corporation who appears to be in control or management of the place of business;
• (c) on the Attorney General of Canada, by leaving a copy of the document with an employee at the office of the Crown Prosecutor retained by the Attorney General of Canada having carriage of the proceedings, or by means of telephone transmission of a facsimile of the document in accordance with Rule 4.03 (3); and
• (d) on the Attorney General of New Brunswick, by leaving a copy of the document with an employee at the office of the Crown Prosecutor having carriage of the proceedings, or by means of telephone transmission of a facsimile of the document in accordance with Rule 4.03 (3).

4.02(2) A person effecting personal service of a document need not produce the original document or have it in his or her possession.

Alternatives to Personal Service

Where Available

4.03(1) Where these Rules or an order of the Court permit service by an alternative to personal service, service shall be made in accordance with this Rule.

4.03(2) Service on a party who has counsel may be made by leaving a copy of the document with counsel, or an employee in counsel’s office, but service under this Rule is effective only if counsel or the said employee endorses on the document or a copy of it an acceptance of service and the date of acceptance.

4.03(3) Service of a document on counsel of a party may be made by telephone transmission of a facsimile of the document in accordance with Rule 4.03 (4).

4.03(4) A document that is served by telephone transmission shall include a cover page indicating the

• (a) sender’s name, address and telephone number;
• (b) name of counsel to be served;
• (c) date and time of transmission;
• (d) total number of pages transmitted, including the cover page;
• (e) telephone number from which the document is transmitted; and name and telephone number of a person to contact in the event of transmission problems;

and shall include an acknowledgement of receipt card in Form 3B; but service under this Rule shall be considered effective only if counsel endorses the acknowledgement of receipt card and returns it to the serving party.

4.03(5) A document may be served electronically on a party who has counsel by transmitting the document by electronic mail, but service under this Rule shall be considered effective only if counsel or a duly authorized employee replies electronically acknowledging receipt of the transmission and of the document.

4.03(6) By accepting service counsel shall be deemed to represent to the Court that counsel has the authority of his or her client to accept service.

4.03(7) Service on an accused who is not represented by counsel must be made by personal service unless the Court:

• (a) approves an alternative method of service; or
• (b) dispenses with service.

Where Document Does Not Reach Person Served

4.04 Even though a person has been served with a document in accordance with these Rules, the person may show on Application to set aside the consequences of default, for an extension of time or in support of a request for an adjournment, that the document

• (a) did not come to his or her notice; or
• (b) came to his or her notice only at some time later than when it was served or is deemed to have been served.

Validating Service

4.05 Where a document has been served in a manner other than one authorized by these Rules or an order, the Court may make an order validating the service where the Court is satisfied that

• (a) the document came to the notice of the person to be served; or
• (b) the document was served in such a manner that it would have come to the notice of the person to be served, except for the person’s own attempts to evade service.

Proof of Service

Affidavit of Service

4.06(1) Service of a document may be proved by an affidavit of the person who served it in Form 4A or 4B as the case may be.

Counsel’s Admission or Acceptance

4.06(2) Counsel’s written admission or acceptance of service is sufficient proof of service and need not be verified by affidavit.

Substituted Service

4.07(1) Where it appears to the Court that it is impractical for any reason to effect prompt service of a document in accordance with these Rules, the Court may make an order

• (a) for substituted service; or
• (b) dispensing with service, if the Court considers it necessary in the interests of justice.

4.07(2) Where the Court makes an order for substituted service, it shall specify in the order when service in accordance with the order shall be deemed to be effective.

RULE 5 – APPLICATIONS

5.01(1) In any criminal proceeding where an application or motion is authorized by statute or otherwise it shall be commenced by a Notice of Application in Form 1.

5.01(2) A Notice of Application shall be filed with the Clerk’s office.

Third Party

5.01(3) If it appears that the interest of a third party may be affected by a possible outcome, the applicant shall notify the third party of the Application as though they were a party to the Application.

5.01(4) An applicant may apply ex parte to a judge for directions where there is uncertainty whether anyone not a party to an Application should be served.

Intervener

5.01(5) Any person interested in a proceeding between other parties may, by leave of the Court, intervene therein upon such terms and conditions and with such rights and privileges as the Court may determine.

Content of Notice

5.02(1) Every Notice of Application in Form 1 shall state:

• (a) the place and date of hearing;
• (b) the precise relief sought;
• (c) with reasonable particularity, the grounds to be argued including reference to any statutory provision or rule to be relied upon;
• (d) the documentary, affidavit and other evidence to be used at the hearing of the Application; and
• (e) whether any order is required abridging or extending the time for service or filing of the Notice of Application or supporting materials required under these Rules.
  

Service of the Notice

Generally

5.03(1) The Notice of Application shall be served on all parties to the proceeding together with all supporting evidence.

Third Party

5.03(2) Where, at any point, it appears that a third party not a party to the proceedings has an interest in the possible outcome of an Application that is worthy of protection, the Court shall order the third party be served and given opportunity to be joined to the proceeding.

Minimum Notice Period

5.03(3) Except where otherwise expressly provided by the Criminal Code or these Rules, the Notice of Application shall be served and filed with the Court at least 45 days before the date of the hearing of the Application or the date set for trial, which ever date comes first.

Materials for Use on Applications

Documents May be Filed as Part of Record

5.04(1) Any documents served by a party for use on an Application may be filed, together with proof of service, as part of the party’s application record and need not be filed separately if the record is filed within the time prescribed for filing the notice or other material.

Transcript of Evidence

5.04(2) A party who intends to refer to a transcript of evidence at the hearing of an Application shall file a copy of the transcript with the Court at least 10 days before the hearing of the Application or the date set for trial whichever comes first in the case of the applicant and 5 days in the case of the respondent or intervener.

Pre-Hearing Brief

5.04(3) The applicant shall file with the Clerk’s office a written brief, along with an electronic version, at least 10 days before the hearing of the Application. The responding party, including any intervener, shall file with the Clerk’s office a written brief, along with an electronic version, and a list of materials to be used at the hearing, at least 5 days before the hearing of the Application. A party shall also provide a written copy of their brief to the opposite party within the same time periods.

Contents of Pre-Hearing Brief

5.04(4) The pre-hearing brief shall contain in consecutively numbered paragraphs:

• (a) a succinct outline of the facts the party intends to establish,
• (b) a concise statement of the issues to be dealt with by the Court,
• (c) a concise statement of the principles of law on which the party relies and citation of relevant statutory provisions and leading authorities,
• (d) a concise statement of the relief sought by the party,
• (e) Schedule A consisting of a list of authorities in the order referred to in the brief, and
• (f) Schedule B consisting of the text of all relevant provisions of Acts and Regulations (or copies of the relevant parts of the Act or Regulation may be filed and served with the brief).
  

The Hearing of Applications

Place of Hearing

5.05 An Application shall be heard and determined by a judge of the Court in the judicial district in which the proceeding is being or is to be held.

Evidence on Applications

By Affidavit

5.06(1) Evidence on an Application may be given by affidavit in Form 2 and in accordance with Rule 3.06, unless the Criminal Code, or other applicable statute provides otherwise.

5.06(2) The affidavits on which an Application is founded shall be served with the Notice of Application and shall be filed in the Clerk’s office.

5.06(3) All affidavits to be used at the hearing in opposition to an Application or in reply shall be served on all the parties and filed in the Clerk’s office, no later than 15 days before the hearing.

By Examination of Witnesses

5.06(4) Subject to the Criminal Code or any other applicable statute or rule of law, with leave of the presiding judge a witness may be examined or cross-examined upon the hearing of an Application and an affiant may be examined or cross-examined with respect to his or her affidavit and nothing in these rules shall be construed to affect the authority of a judge hearing an Application to receive evidence through the examination of witnesses.

By Agreed Statement of Facts

5.06(5) A judge, before or upon the hearing of the Application, may dispense with the filing of any transcript(s) or affidavit(s) required by these Rules and act upon a statement of facts agreed upon by the parties.

By Written Argument

5.06(6) The judge may, on such terms as he or she considers just, direct that argument on an Application be presented in writing rather than by personal appearance.

By Consent in Writing

5.06(7) The respondent may consent in writing to the relief sought in an Application and a judge, satisfied that the relief sought by the applicant should be granted, may grant the Application without the attendance of the parties.

5.06(8) The applicant must file with the Court a draft order and the respondent’s consent before the Application will be considered by a judge under Rule 5.06 (7).

Abandonment of Application

5.07 Where an applicant desires to abandon the Application, the applicant shall serve, in any manner provided by Rule 4, a Notice of Abandonment in Form 5 signed by counsel in the Application or by the applicant, and the Court may thereupon dismiss the Application as abandoned, without the attendance of counsel or the applicant.

Dismissal for Failure to Appear

5.08 An applicant who fails to appear at the hearing of an Application shall be deemed to have wholly abandoned the Application.

Application at Trial

5.09 Nothing in this Rule shall be interpreted as derogating from the right of a party to make an Application at any point in the trial; but the failure to give timely notice for such an Application may be taken into account by the judge in determining in all the circumstances

• (a) whether to hear the Application; or
• (b) whether to hear the Application forthwith; or
• (c) whether to adjourn the trial to hear the Application; and/or
• (d) on what terms the judge will hear the Application.

RULE 6 - PRE-TRIAL CONFERENCE

Under subsection 625.1(1) of the Criminal Code

6.01(1) Where an accused is to be tried by a Judge without a jury and it appears that the interests of justice would be served by the holding of a pre-trial conference, any of the parties to the proceeding may apply, or the Court on its own may order, that a pre-trial conference be held in order to facilitate discussion of any or all issues relating to that proceeding.

Under subsection 625.1(2) of the Criminal Code

6.01(2) Where an accused is to be tried by a court composed of a judge and jury, a pre-trial conference shall be held in order to facilitate discussion of any or all issues relating to that proceeding.

Pre-trial Conference Submission

6.02(1) A Pre-trial Conference Submission (Form 6) shall be completed by the parties represented by counsel, exchanged between counsel, and filed in the Clerk’s office at least 5 days in advance of the conference.

6.02(2) An accused not represented by counsel is not required to file a Pre-trial Conference Submission.

Nature of the Pre-trial Conference

6.03(1) The proceedings of the pre-trial conference shall be recorded.

Specific Inquiries

6.03(2) In addition to the topics identified in Form 6 (Pre-trial Conference Submission), a judge conducting a pre-trial conference may inquire as to:

• (a) the extent of disclosure made by the prosecutor and any initial or further request therefor by an accused or counsel for an accused;
• (b) the nature and particulars of any Applications to be made at the outset of the proceedings including any
  • (i) Application to contest the laying of the indictment or any count thereof,
  • (ii) Application to stay or otherwise determine the proceedings prior to plea or t he introduction of evidence,
  • (iii) Application to challenge the sufficiency of the indictment, to order particulars or to amend the indictment or any count thereof,
  • (iv) Application to sever the trial of any count(s) or accused from the trial(s) of any other accused or count,
  • (v) Application concerning the special pleas of autrefois acquit, autrefois convict or pardon,
  • (vi) Application to determine the fitness of an accused to stand trial;
• (c) the simplification of such issues as remain to be contested at the proceedings;
• (d) the possibility of obtaining admissions and agreements so as to facilitate an expeditious, fair and just determination of the proceedings;
• (e) the estimated duration of the proceedings;
• (f) the advisability of fixing a date for the commencement of the proceedings; and
• (g) any other matter that may assist in promoting a fair, just and expeditious proceeding.

Other Pre-trial Conferences

6.04 Nothing in these Rules shall be construed or interpreted so as to preclude a judge from conducting additional pre-trial conferences.

Repeal

6.05 This Pre-trial Conference Rule replaces the Rule of the Court of Queen’s Bench of New Brunswick Respecting Pre-Trial Conferences Under Subsection 553.1(2) of the Criminal Code of Canada adopted by a majority of the judges of the Court of Queen’s Bench of New Brunswick on March 17, 1986, Registration SI/86-78, and published in the Canada Gazette, Part II, Vol. 120, No. 12.

RULE 7 – STATUS HEARING

7.01(1) Where a matter has been set down for trial and it appears to any of the parties to the proceeding that there is a reasonable likelihood that the matter will not proceed on the date scheduled, owing to a lack of preparation or failure on the part of any of the parties to take steps to ensure that the matter proceeds in a timely fashion on the date(s) set or for any other reason, that party shall request the Clerk’s office to schedule a status hearing.

7.01(2) A judge may at any time direct the Clerk’s office to schedule a status hearing.

7.01(3) At a status hearing the judge shall hear the parties on the issue of whether the scheduled dates for the trial of the matter are reasonably likely to be met by the parties and upon conclusion of the hearing the judge shall either confirm the date(s) set for trial or adjourn the trial and/or give directions.

RULE 8 – COURT ATTENDANCE

Procuring Attendance of Prisoners

8.01(1) This Rule applies to the provisions of section 527 of the Criminal Code for procuring the attendance of a person who is confined in a prison.

8.01(2) Where the person who is confined is the accused, the Application shall be made by the prosecutor.

8.01(3) Where the person who is confined is a witness, the Application shall be made by the party that plans to call that witness.

8.01(4) The Application shall be ex parte and made as soon as reasonably practicable and sufficiently before attendance is required to ensure that no adjournment of the proceeding will be required for attendance and to provide adequate notice to the authorities holding and transporting the person who is confined and, in any event, except with leave of the Court, an Application shall be made not less than four days before the day attendance is required.

8.01(5) The Application shall be made by Notice of Application in Form 1 and shall address the requirements of section 527 of the Criminal Code.

8.01(6) In all other aspects these Criminal Procedure Rules of the Court of Queen’s Bench apply to any Applications made under section 527 of the Criminal Code.

Obtaining a Subpoena

8.02(1) This Rule applies to the provisions of subsection 698(1) and subsections 699(1) and (2) of the Criminal Code.

For a Person within the Province

8.02(2) Under subsections 698(1) and 699(1) of the Criminal Code, a subpoena may be issued by the Clerk under the seal of the Court upon the applicant filing with the Clerk’s office a statement signed by counsel for the applicant or by the applicant personally if not represented by counsel, setting out the name and address of the proposed witness and a summary of the materiality of the evidence likely to be given by the proposed witness.

For a Person outside the Province

8.02(3) An Application under paragraph 699(2)(b) of the Criminal Code for the issuance of a subpoena to a person out of the Province of New Brunswick shall be made ex parte to a judge.

8.02(4) The Application shall be by Notice of Application in Form 1 and shall be accompanied by an affidavit of the applicant or on behalf of the applicant deposing:

• (a) as to the name and address of the proposed witness;
• (b) as to the materiality of the evidence likely to be given by the proposed witness; and
• (c) as to the necessity of procuring the personal attendance of the witness rather than obtaining that proposed witness’s evidence by other means, including by video-conference or by agreed statement.

Counsel of Record

8.03(1) Counsel who assume the representation of an accused who was either unrepresented or represented by another counsel shall immediately file a notice to that effect with the Clerk’s office and serve a copy of the notice on the prosecutor in accordance with Rule 4.

8.03(2) Counsel of record for an accused shall remain counsel of record for his or her client with all the responsibilities pertaining thereto, until an order removing counsel from the record has been made by a judge or a new counsel has filed a notice in accordance with Rule 8.03 (1).

8.03(3) An Application to be removed as counsel of record shall be by Notice of Application in Form 1 and shall be governed by these Criminal Procedure Rules of the Court of Queen’s Bench.

RULE 9 - APPLICATIONS FOR DECLARATIONS OF UNCONSTITUTIONALITY

9.01 This Rule applies to Applications in criminal proceedings:

• (a) to declare unconstitutional and of no force and effect, in whole or in part, any enactment of the Parliament of Canada, or
• (b) to declare unconstitutional and of no force and effect, in whole or in part, any rule or principle of law applicable to criminal proceedings, whether on account of subsection 8(2) or (3) of the Criminal Code or otherwise.
  

9.02 Service of the Notice of Application and all supporting documentary, affidavit and other material intended to be used at the hearing of the Application shall be made on:

• (a) the regional office of the Attorney General of Canada;
• (b) the prosecutor having carriage of the proceeding; and
• (c) such other person and on such terms as a judge may order.

9.03 Where applicable, the applicant shall comply with the notice requirements of the Judicature Act.

9.04 In all other aspects these Criminal Procedure Rules of the Court of Queen’s Bench apply to Applications seeking declarations of unconstitutionality.

RULE 10 – SUMMARY CONVICTION APPEALS

10.01 Summary Conviction Appealsshall be governed by Rule 64 of the Rules of Court of New Brunswick.

RULE 11 – APPLICATIONS FOR MANDAMUS, CERTIORARI AND PROHIBITION

11.01 Applications for mandamus, certiorari and prohibition shall be governed by Rule 65 of the Rules of Court of New Brunswick.

RULE 12 – TRANSITIONAL

12.01 These Rules apply to criminal proceedings whenever commenced.

Appendix of Forms

FORM 1

NOTICE OF APPLICATION

Court File No. (insert)

IN THE COURT OF QUEEN’S BENCH

TRIAL DIVISION

JUDICIAL DISTRICT OF (specify)

BETWEEN:

HER MAJESTY THE QUEEN
(indicate whether applicant or respondent)

and

(specify name of accused)
(indicate whether applicant or respondent)

NOTICE OF APPLICATION
(Criminal Procedure Rules of the Court of Queen’s Bench)

TAKE NOTICE that an Application will be brought at . . . . a.m. (or p.m.) on the . . . . . . . . . day of . . . . . . . ., 20. . , at . . . . . . (address of court house). . . . . . . , for an order granting (set out relief sought).

THE GROUNDS FOR THIS APPLICATION ARE:

1. That ...
2. That ...
3. That …

IN SUPPORT OF THIS APPLICATION, THE APPLICANT RELIES UPON THE FOLLOWING:

1. (set out documents such as affidavits, transcripts, etc., upon which the Applicant relies)

THE RELIEF SOUGHT IS:

1. An Order allowing the Application and granting (indicate particular relief sought)

THE APPLICANT MAY BE SERVED WITH DOCUMENTS PERTINENT TO THIS APPLICATION:

1. By service in accordance with Rule 4, at (specify address and fax number)

Dated at . . . . . . . . . . ., this . . . . . . . . . day of . . . . . . . , 20. . . .

_____________________________________________________
(signature of applicant, counsel or Crown counsel)

_____________________________________________________
(name and address)

_____________________________________________________
(telephone, including area code and fax number)

_____________________________________________________
(email)

FORM 2

AFFIDAVIT

Court File No. (insert)

IN THE COURT OF QUEEN’S BENCH

TRIAL DIVISION

JUDICIAL DISTRICT OF (specify)

BETWEEN:

HER MAJESTY THE QUEEN
(indicate whether applicant or respondent)

and

(specify name of accused)
(indicate whether applicant or respondent)

AFFIDAVIT OF (insert name of deponent)
(Criminal Procedure Rules of the Court of Queen’s Bench)

I, . . . . . (full name of deponent). . . , of the City (or Town or as may be) of . . . . . . . . ., in the County (or District or Regional Municipality) of . . . . . . . ., . . . . . (deponent’s capacity). . . . . ., MAKE OATH AND SAY (or AFFIRM):

1. (set out the statements of fact in consecutively numbered paragraphs, with each paragraph being confined as far as possible to a particular statement of fact)

Sworn (or Affirmed) before me at the City (or Town or as may be) of . . . . . . . . . in the County (or District or Regional Municipality) of . . . . . . . . on . . . . . . . . . 20. .

________________________
(deponent’s signature)

__________________________
Commissioner for Taking Oaths
(or as may be)

FORM 3A

ACKNOWLEDGMENT OF RECEIPT CARD

Court File No. (insert)

BETWEEN:

HER MAJESTY THE QUEEN
(indicate whether applicant or respondent)

and

(specify name of accused)
(indicate whether applicant or respondent)

ACKNOWLEDGMENT OF RECEIPT CARD
(Criminal Procedure Rules of the Court of Queen’s Bench)

To: (state full name and address)

You are served by mail with the documents enclosed with this card.

You are requested to sign the acknowledgment below and mail this card immediately after you receive it. If you fail to do so, the documents may be served upon you in another manner.

ACKNOWLEDGMENT OF RECEIPT
(The reverse side of this card must bear the name and address of the sender and the required postage)

I ACKNOWLEDGE that I have received a copy of the following documents: (To be completed in advance by the sender of the documents. Include sufficient particulars to identify each document.)

Date	Signature
________________________ (date)	________________________ (signature of person being served)

FORM 3B

ACKNOWLEDGMENT BY COUNSEL OF SERVICE (BY FAX)

BETWEEN:

HER MAJESTY THE QUEEN
(indicate whether applicant or respondent)

and

(specify name of accused)
(indicate whether applicant or respondent)

ACKNOWLEDGMENT BY COUNSEL OF SERVICE (BY FAX)
(Criminal Procedure Rules of the Court of Queen’s Bench)

I ACKNOWLEDGE that I have received on (date) a copy of the following documents: (To be completed in advance by the sender of the documents and with sufficient particularity to identify the documents.)

Date	Signature
________________________ (date)	________________________ (signature of counsel)

FORM 4A

AFFIDAVIT OF SERVICE
(Court, Court File Number, Style of Proceeding)

AFFIDAVIT OF SERVICE
(Criminal Procedure Rules
of the Court of Queen’s Bench)

I, . . . . . . . . . . . . . (full name). . . . . . . . . , of the . . . . . . . . . . . of . . . . . . . . . . . in the Province of New Brunswick, . . . . . (occupation). . . . . . . . . . . . . . , MAKE OATH AND SAY AS FOLLOWS:

1. On the . . . . . . . . day of . . . . . . . . . . . . ., 20. . . , I served the respondent (or as may be) with the attached document marked “A” by leaving a copy with the respondent (or as may be) at. . . . . . . . . . . . . . (address where service was made). . . . . . . . . .
2. I was able to identify the person served by means of the fact that . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

or, where service was made on an individual by leaving a copy with an adult person:

1. On the . . . . . . . . day of . . . . . . . . . . . . ., 20. . . , I served the respondent (or as may be) with the attached document marked “A” by leaving a copy in a sealed envelope addressed to the respondent (or as may be) with . . . . . . . . ., who appeared to be an adult and an occupant of the dwelling in which the respondent (or as may be) resides, at . . . . . . . . (address where service was made). . . . . . . . . . . , and by mailing a copy by prepaid mail on the same (or next) day addressed to the respondent (or as may be) at the same address.
2. Prior to such service I made an unsuccessful attempt to personally serve the respondent (or as may be) at the respondent’s (or as may be) place of residence on the . . . . . . . day of . . . . . . , 20. . , (or where more than one attempt has been made: and again on the . . . . . . day of . . . . . . . . , 20. . .).

or, where service was made by prepaid mail or prepaid courier upon counsel for the party:

1. On the . . . . . . . day of . . . . . . . . . . . . ., 20. . , I served the respondent (or as may be) with the attached document marked “A” by sending by prepaid mail (or prepaid courier as may be) a copy addressed to . . . .. . . . . . . . . . . . , counsel for the respondent (or as may be), at. . . . . . . . . . . . . (full mailing address). . . . . . . . . . . . . .

or, where service was made by prepaid mail or prepaid courier upon a party:

1. On the . . . . . . . . day of . . . . . . . . . . . . ., 20. . . , I served the respondent (or as may be) with the attached document marked “A” by sending a copy of the document together with an Acknowledgement of Receipt Card by prepaid mail (or prepaid courier as may be) addressed to the respondent (or as may be) at . . . . . . . . . . (full mailing address). . . . . . . . . . . . . . . . . . . . . , the respondent’s (or as may be) last known address.
2. On the . . . . . . . . day of . . . . . . . . . . . . ., 20. . ., the attached Acknowledgement of Receipt Card marked “B” bearing a signature which appears to be the signature of the respondent (or as may be) was returned to and received by me.

or

• 2. On the . . . . . . . . day of . . . . . . . . . . . . ., 20. ., the attached post office receipt (or acknowledgement of receipt in writing) marked “B” bearing a signature which appears to be the signature (or a copy of the signature) of the respondent (or as may be) was returned to and received by me.

or

• 2. On the . . . . . . . . day of . . . . . . . . . . . . ., 20. ., the attached confirmation marked “B” was received by me from the carrier who delivered the document.

or, where service was made on a corporation:

1. No office or place of business of the respondent (or as may be) is located at any address given in the last statement of the respondent (or as may be) delivered to the Minister of Justice and no office or place of business of the respondent (or as may be) can be found in New Brunswick.
2. On the . . . . . . . . day of . . . . . . . . . . . . ., 20. ., I served the respondent (or as may be) with the attached document marked “A” by sending a copy by prepaid mail (or prepaid courier as may be) to the respondent at . . . . . . . . . . (full mailing address). . . . . . . . . . . . . . . , being the address given for the respondent on the last statement of the respondent (or as may be) delivered to the Minister of Justice, and also by sending a copy by prepaid mail (or prepaid courier as may be) to . . . . . . . . . . . . . . . . . . . , who is shown as an officer of the respondent on the last statement of the respondent (or as may be) delivered to the Minister of Justice, at. . . . . . . . . (full mailing address). . . . . . . . . . . . . . . . , which is the address given for the respondent (or as may be) on such a statement.

or, where service was made by telephone transmission producing a facsimile of the document in the office of counsel:

1. On the . . . . . . . . day of . . . . . . . . . . . . . , 20. . ., I served the respondent (or as may be) with the attached document marked “A” by sending a facsimile of the document accompanied by a copy of the cover page marked “B” by telephone transmission to. . . . . . . . . . . . . . . . . . , counsel for the respondent (or as may be).

Sworn (or Affirmed) before me at the City (or Town or as may be) of . . . . . . . . in the County (or District or Regional Municipality) of . . . . . . . ., on . . . . . . . ., 20. . .

________________________
(deponent’s signature)

__________________________
Commissioner for Taking Oaths
(or as may be)

FORM 4B

CERTIFICATE OF SERVICE BY SHERIFF

(Court, Court File Number, Style of Proceeding)

CERTIFICATE OF SERVICE BY SHERIFF

I, . . . . . . (full name). . . . . . . , Sheriff (or Deputy Sheriff as may be) for the County of . . . . . . . . . . , certify that on the . . . . . . . . . day of . . . . . . . . . , 20. . . . , at . . . . a.m. (or p.m.):

• (1) I served the respondent (or as the case may be). . . . . . . . . . . , by leaving a copy of this document with . . . . . . . . . . . . . . . . . .
• (2) I was able to identify the respondent (or as may be) by means of the fact that . . . . . . . . . . . . .

or

(2) I was able to identify the person with whom a copy of the document was left to effect service on the respondent (or as may be) by means of the fact that . . . . . . . . . . . . . . . . . . . . . . . . . .

DATED at . . . . . . . . . ., this . . . . . . . day of . . . . . . . . . . . . , 20. . .

_____________________________________________________
(signature of sheriff or deputy sheriff serving the document)

FORM 5

NOTICE OF ABANDONMENT

Court File No. (insert)

IN THE COURT OF QUEEN’S BENCH

TRIAL DIVISION

JUDICIAL DISTRICT OF (specify)

BETWEEN:

HER MAJESTY THE QUEEN
(indicate whether applicant or respondent)

and

(specify name of accused)
(indicate whether applicant or respondent)

NOTICE OF ABANDONMENT
(Criminal Procedure Rules of the Court of Queen’s Bench)

TAKE NOTICE that the (identify party) hereby wholly abandons the Application for (indicate the nature of the order and relief sought).

Dated at . . . . . . . . . ., this . . . . . . . day of . . . . . . . . . . . . , 20. . . . .

_____________________________________________________
(signature of applicant or counsel)

_____________________________________________________
(set out name and address)

_____________________________________________________
(telephone and fax number with area code)

FORM 6

PRE-TRIAL CONFERENCE SUBMISSION

Court File No. (insert)

IN THE COURT OF QUEEN’S BENCH

TRIAL DIVISION

JUDICIAL DISTRICT OF (specify)

BETWEEN:

HER MAJESTY THE QUEEN

and

(specify name of accused)

PRE-TRIAL CONFERENCE SUBMISSION
(Criminal Code, section 625.1)

(Criminal Procedure Rules of the Court of Queen’s Bench of New Brunswick)

NAME OF ACCUSED: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CHARGES: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

DEFENCE COUNSEL:

Name	Tel./fax/e-mail
Name: . . . . . . . . . . . . . . . . . . . .	Tel./fax/e-mail: . . . . . . . . . . . . . . . . . . . . . .
Name: . . . . . . . . . . . . . . . . . . . .	Tel./fax/e-mail: . . . . . . . . . . . . . . . . . . . . . .

CROWN COUNSEL:

Name	Tel./fax/e-mail
Name: . . . . . . . . . . . . . . . . . . . .	Tel./fax/e-mail: . . . . . . . . . . . . . . . . . . . . . .
Name: . . . . . . . . . . . . . . . . . . . .	Tel./fax/e-mail: . . . . . . . . . . . . . . . . . . . . . .

DATE OF ALLEGED OFFENCE(S): . . . . . . . . . . . . . . . . . . . . . . . . . .

DATE ACCUSED CHARGED: . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

DATE INFORMATION SWORN: . . . . . . . . . . . . . . . . . . . . . . . . . . .

DATE OF FIRST APPEARANCE:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

DATES OF SUBSEQUENT APPEARANCES:

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

DATE INDICTMENT FILED: . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

FORM OF JUDICIAL INTERIM RELEASE / REMAND:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

DISCLOSURE ISSUES: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CHARTER OF RIGHTS ISSUES:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

EXPECTED MODE OF TRIAL: . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[ ] Re-election expected

[ ] Crown consenting (if required)

PRE-TRIAL MOTIONS: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

VOIR DIRES: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

UNDISPUTED ISSUES / TRIABLE ISSUES:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

LEGAL ISSUES: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

LENGTH OF TRIAL ANTICIPATED: . . . . . . . . . . . . . . . . . . . . . . . .

SUBMITTED at the . . . . . . . . . . of . . . . . . . . . . . . on the . . . . . . . day of . . . . . . . . . . . 20. . . .

_____________________________________________________
Signature of Counsel for (insert)