Vol. 148, No. 1 — January 1, 2014

Registration

SI/2014-5 January 1, 2014

CRIMINAL CODE

Rules Amending the Criminal Proceedings Rules for the Superior Court of Justice (Ontario)

The Superior Court of Justice (Ontario), pursuant to subsections 482(1) (see footnote a) and (3) (see footnote b) of the Criminal Code (see footnote c), makes the annexed Rules Amending the Criminal Proceedings Rules for the Superior Court of Justice (Ontario).

Toronto, Ontario, December 18, 2013

H. J. SMITH
Chief Justice
Superior Court of Justice (Ontario)

RULES AMENDING THE CRIMINAL PROCEEDINGS RULES FOR THE SUPERIOR COURT OF JUSTICE (ONTARIO)

AMENDMENTS

1. Subrules 1.01(2) and (3) of the English version of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) (see footnote 1) are replaced by the following:

(2) In these Rules,

• (a) all the provisions identified by the same number to the left of the decimal point comprise a Rule (for example, Rule 1, which consists of rules 1.01 to 1.06);
• (b) a provision identified by a number with a decimal point is a rule (for example, rule 1.01); and
• (c) a rule may be subdivided into
  • (i) subrules (for example, subrule 1.01(1)),
  • (ii) paragraphs (for example, paragraph 1.01(2)(a) or 4.06(1)(b)), and
  • (iii) subparagraphs (for example, subparagraph 1.01(2)(c)(i) or 4.08(11)(a)(i)).

Alternative References

(3) In a proceeding in the court, it is sufficient to refer to a rule or subdivision of a rule as a “rule” followed by the number of the rule, subrule, paragraph or subparagraph (for example, rule 1.01, rule 1.01(2), rule l.01(2)(c), rule 1.01(2)(c)(iii)).

2. Subrule 1.02(2) of the Rules is replaced by the following:

(2) The Ontario Review of Parole Ineligibility Rules (Rule 50), as enacted by the Chief Justice of the Superior Court of Justice under subsection 745.64(1) of the Code, are attached to these rules for administrative purposes.

3. (1) Paragraph 5.01(5)(b) of the Rules is amended by striking out “or” at the end of subparagraph (i), by adding “or” at the end of subparagraph (ii) and by adding the following after subparagraph (ii):

• (iii) by emailing a copy of the document in accordance with subrule (6), unless otherwise ordered by a judge.

(2) Rule 5.01 of the Rules is amended by adding the following after subrule (5):

(6) Service of a document in accordance with subparagraph (5)(b)(iii) is effective only if

• (a) the email message includes:
  • (i) the sender’s name, address, telephone number, fax number and email address,
  • (ii) the date and time of transmission, and
  • (iii) the name and telephone number of a person to contact in the event of transmission problems; and
• (b) the party acting in person or the person who is not a party provides by email an acceptance of service and confirms the date of the acceptance. If the email acceptance is received between 4 p.m. and midnight, service is deemed to have been made on the following day.

4. (1) Subrule 5.05(1) of the Rules is amended by striking out “or” at the end of paragraph (c), by adding “or” at the end of paragraph (d) and by adding the following after paragraph (d):

• (e) by emailing a copy to the solicitor’s office in accordance with subrule (4).

(2) Rule 5.05 of the Rules is amended by adding the following after subrule (3):

(4) Service of a document in accordance with paragraph (1)(e) is effective only if:

• (a) the email message includes
  • (i) the sender’s name, address, telephone number, fax number and email address;
  • (ii) the date and time of transmission; and
  • (iii) the name and telephone number of a person to contact in the event of transmission problems; and
• (b) the solicitor of record provides an acceptance of service by email and confirms the date of the acceptance. If the email acceptance is received between 4 p.m. and midnight, service is deemed to have been made on the following day.

5. Rule 5.09 of the Rules is amended by adding the following after subrule (4):

Electronic Service

(5) Service of a document under subparagraph 5.01(5)(b)(iii) or paragraph 5.05(1)(e) may be proved by a certificate of service of the person who served the document stating that he or she:

• (a) has served the document by emailing a copy in accordance with subparagraph 5.01(5)(b)(iii) or subrule 5.05(4) and has received an acceptance of service, with the date and time of the acceptance;
• (b) has sworn an affidavit of service containing the particulars set out in the certificate of service;
• (c) has kept the affidavit of service; and
• (d) will produce, at the request of the court or a party, the affidavit of service.

6. Subrule 6.04(2) of the English version of the Rules is replaced by the following:

(2) The notice of application in Form 1 and any other supporting materials required by the Code, other statutes or these rules, or ordered by a judge of the court, together with proof of service, shall be filed in the office of the clerk of the court in the place where the application is to be heard, not later than thirty (30) days before the date of the hearing of the application, unless otherwise ordered by a judge of the court, or unless subrule 20.04(1) applies.

7. (1) Subrule 6.05(1) of the Rules is replaced by the following:

(1) Unless otherwise ordered by a judge of the court or otherwise provided by these rules, an applicant shall serve on every other party and file an application record in accordance with subrule (2), not later than thirty (30) days before the date of the hearing of the application.

(2) Subrule 6.05(7) of the Rules is replaced by the following:

(7) Unless otherwise ordered by a judge of the court, books of authorities in accordance with rule 32 are required and shall be served and filed within the time limits described in subrules (1) and (3).

(3) Subrule 6.05(9) of the Rules is replaced by the following:

(9) Where a judge orders or these rules require that factums be served and filed on an application, the factums shall comply with rule 33 and be served and filed within the time limits described in subrules (1) and (3), unless otherwise ordered by a judge of the court.

8. Subrule 6.07(4) of the English version of the Rules is replaced by the following:

(4) Subject to the Code or any other applicable statute or rule of law, an affiant may be cross-examined on his or her affidavit at the office of a special examiner in sufficient time in advance of the return date of the application to permit a transcript of the cross-examination to be served on all parties and filed within the time limits described in subrules 6.05(1) and (3), unless otherwise ordered by a judge of the court.

9. (1) Paragraph 22.05(1)(b) of the English version of the Rules is replaced by the following:

• (b) where the application is made under paragraph 599(1)(b) of the Code, an affidavit by or on behalf of the competent authority who has directed that no jury be summoned at the time and place appointed for trial, deposing to the matters described in subrule (3); and

(2) Paragraph 22.05(2)(b) of the English version of the Rules is replaced by the following:

• (b) where the basis of the application under paragraph 599(1)(a) of the Code is prejudicial news media reporting of the matter to be tried, a full statement respecting the time, place, date and name of the relevant account or report, together with a description of the extent of its circulation or coverage in the county or district from which prospective jurors would ordinarily be drawn;

(3) The portion of subsection 22.05(3) of the English version of the Rules before paragraph (a) is replaced by the following:

(3) The affidavit by or on behalf of the competent authority described in paragraph (1)(b) shall contain:

10. The portion of subrule 26.04(2) of the English version of the Rules before paragraph (a) is replaced by the following:

(2) The affidavit by or on behalf of the applicant required by subrule (1) shall contain:

11. Subrule 27.02(2) of the Rules is replaced by the following:

(2) If an application made under paragraph 27.01(a) or (b) relates to an application under Part III of these rules, the application under this rule shall be heard and determined by the judge who hears the applications under Part III of these rules.

12. (1) Subrule 27.05(7) of the English version of the Rules is replaced by the following:

(7) Unless otherwise ordered by a judge of the court, books of authorities in accordance with rule 32 are required and shall be served and filed within the time limits described in subrules 6.05(1) and (3).

(2) Subrule 27.05(9) of the English version of the Rules is replaced by the following:

(9) Factums shall comply with rule 33 and be served and filed within the time limits described in subrules 6.05(1) and (3), unless otherwise ordered by a judge of the court.

13. Subrules 28.04(2) and (3) of the Rules are replaced by the following:

(2) Counsel of record for each accused and the prosecutor assigned to conduct the prosecution, or a prosecutor with authority to bind the prosecutor assigned to conduct the prosecution, shall complete and sign a pre-trial conference report in Form 17, and serve and file the report in accordance with this rule, unless otherwise ordered by a judge of the court, or unless the accused will be pleading guilty and has complied with subrule (4).

(3) If an accused is self-represented, she or he shall complete and sign a pre-trial conference report in Form 17, and file and serve the report in accordance with this rule, unless the accused will be pleading guilty and has complied with subrule (4).

14. Subrule 29.06(2) of the Rules is replaced by the following:

(2) Where any party to a proceeding in which a case supervision conference is held is not represented by counsel, the case supervision conference shall be held in accordance with subrules 28.04(2) to (5).

15. Rule 29A.01 of the English version of the Rules and the headings before it are replaced by the following:

RULE 29A THE APPOINTMENT OF A CASE MANAGEMENT JUDGE

[Code, ss. 551.1 to 551.6]

Authority for Rule

29A.01 The appointment of a Case Management Judge under the Code shall be governed by sections 551.1 to 551.6 of the Code and rules 29A.02 to 29A.06.

16. Rule 29B.01 of the English version of the Rules is replaced by the following:

29B.01 The appointment of judges to determine issues that are to be adjudicated in related trials shall be governed by section 551.7 of the Code and rules 29B.02 to 29B.08.

17. Subrule 30.02(2) of the Rules is replaced by the following:

(2) Despite subrule (1), where the parties expressly agree that applications to admit evidence may be heard and determined by a judge other than the trial judge, and that rulings made on these applications will be incorporated into the record of the proceedings in which the evidence is tendered for admission, the pre-trial conference or case management judge may make an order to give effect to the parties’ agreement and the applications may be heard and determined by a judge other than the designated trial judge.

18. Subrule 31.02(2) of the Rules is replaced by the following:

(2) Despite subrule (1), where the parties expressly agree that applications to exclude evidence may be heard and determined by a judge other than the trial judge and that rulings made on these applications will be incorporated into the record of the proceedings in which the evidence is tendered for admission, the pre-trial conference or case management judge may make an order to give effect to the parties’ agreement and the applications may be heard and determined by a judge other than the designated trial judge.

19. Rule 35.01 of the Rules is replaced by the following:

35.01 This rule applies when the prosecutor indicates an intention to apply to have an offender declared a dangerous offender or a long-term offender under Part XXIV of the Code.

20. Rule 35.02 of the Rules is replaced by the following:

35.02 (1) If the prosecutor indicates an intention to apply to have the offender declared a dangerous offender or long-term offender, the prosecutor and solicitor of record shall complete questions 1 to 7 of Form 23 prior to his or her application.

(2) If the court grants the application under subsection 752.1(1) of the Code, the prosecutor and solicitor of record shall complete questions 8 to 30 of Form 23 prior to the proceedings described in sections 753 or 753.1 of the Code, as the case may be.

21. Subrule 35.03(1) of the Rules is replaced by the following:

35.03 (1) Upon the prosecutor’s indication to apply to have the offender declared a dangerous offender or long-term offender under Part XXIV of the Code, the sentencing hearing shall be subject to case supervision under section 482.1 of the Code and rule 29.

22. Subrule 40.03(5) of the English version of the Rules is replaced by the following:

(5) Except for an order for release from custody under section 816 of the Code, any order provided for in rules 40 to 42 may be made with the consent in writing of the parties, without the attendance of counsel.

23. Subrule 40.08(12) of the English version of the Rules is replaced by the following:

(12) Where the appellant cannot comply with the 15-day period mentioned in subrule (7), and applies for an extension of time under rule 3.02, the judge hearing the application or determining the application in chambers on consent shall consider whether the 15-day period mentioned in subrule (7) is reasonable in the circumstances, and whether the proper administration of justice would benefit if this period were to be extended.

24. Paragraph 40.10(3)(m) of the Rules is replaced by the following:

• (m) the certificates respecting evidence referred to in subrule 40.08(1).

25. (1) Subrule 40.11(1) of the Rules is replaced by the following:

(1) Except in appeals in writing under rule 40.15 or except where a judge has made an order under subrule 40.03(2), all parties to the appeal and persons who have been granted the right to be heard shall deliver a factum to be entitled and described on its cover as “Appellant’s Factum”, “Respondent’s Factum”, “Intervenor’s Factum”, or as the case may be.

(2) Subrule 40.11(4) of the English version of the Rules is replaced by the following:

(4) An appellant shall prepare an “Appellant’s Factum” not exceeding 20 numbered pages in length, excluding the schedule referred to in paragraph (5)(f) and, within 90 days of receiving the Court Reporter’s Completion Certificate under subrule 40.08(20), shall file a copy, together with proof of service thereof, on all other parties and persons who have been granted the right to be heard on the appeal.

26. (1) Subrule 40.16(1) of the French version of the Rules is replaced by the following:

(1) La demande de procès de novo visée au paragraphe 822(4) du Code est présentée avant qu’une date ait été fixée pour l’audition de l’appel aux termes de la règle 40.14.

(2) Subrule 40.16(2) of the English version of the Rules is replaced by the following:

(2) Notice of an application for a trial de novo shall be served on every other party at least seven days in advance, except that, if the notice is filed with the notice of appeal, it shall be served with the notice of appeal in accordance with subrule 40.06(1).

27. Subrule 40.18(2) of the Rules is replaced by the following:

(2) Notwithstanding subrules (1) and (3), where the only reason a transcript has not been filed is that a court reporter has not prepared the transcript, the appellant may notify the respondent in writing of the reason for the delay and need not attend the supervision hearing mentioned in subrule (1) unless otherwise ordered by a judge.

28. Subrule 42.05(8) of the Rules is replaced by the following:

(8) Where the appellant seeks an order under subrule (6) which varies the condition referred to in paragraph (4)(a), the material filed in support of the application shall contain a summary of the status of the appeal, an explanation for any failure to comply with the rules and, where applicable, the earliest feasible date on which the appeal may be heard.

29. Subrule 43.03(2) of the English version of the Rules is replaced by the following:

(2) Where an applicant seeks to quash a warrant, conviction, order or determination, other than a subpoena or warrant to compel the attendance of a witness, there shall be endorsed upon the notice of application a notice in the following form addressed to the Court Services Manager or coroner or as the case may be:

By virtue of subrule 43.03(3) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), you are, upon receiving this notice, to return forthwith to the Clerk’s Office at ...... true copies of the conviction (or as the case may be) herein referred to, together with true copies of the indictment, information, exhibits and papers or other documents touching the matter, as fully and as entirely as they remain in your custody, together with this notice and the certificate prescribed in the said rule.

Dated this ......... day of ............., 2.....

C.D,

Solicitor for the Applicant

To: A.B.

Court Services Manager at ..............................

(or coroner, or as the case may be)

30. Subrule 43.05(6) of the Rules is replaced by the following:

(6) The respondent shall prepare, serve and file an Application Record and Factum in accordance with subrules 6.05(3) and (4) and rule 33.

31. The heading after rule 43.06 of the Rules is repealed.

32. The English version of the Rules is amended by replacing “rule” and “sub-rule” with “subrule” and by replacing “subsections” with “subrules”, with any necessary modifications, in the following provisions:

• (a) subrule 6.05(3);
• (b) subrules 6.07(2) and (3);
• (c) subrules 27.05(1) to (3);
• (d) subrules 28.04(12) and (13);
• (e) subrule 28.05(4);
• (f) subrule 35.02(1); and
• (g) subrule 40.08(8).

33. The English version of the Rules is amended by replacing “clause” and “subrule” with “paragraph” in the following provisions with any necessary modifications:

• (a) paragraph 5.03(4)(b);
• (b) paragraph 5.05(1)(c);
• (c) subrule 5.05(2);
• (d) subrule 5.09(4);
• (e) subrule 20.05(2);
• (f) subrules 21.04(2) and (3);
• (g) subrule 22.05(2);
• (h) paragraph 22.05(3)(c);
• (i) rule 22.06;
• (j) subrules 23.04(2) and (3);
• (k) subrule 24.05(2);
• (l) paragraph 24.10(2)(b);
• (m) paragraph 25.04(2)(f);
• (n) subrule 40.11(6);
• (o) subrule 41.03(2);
• (p) subrule 42.03(2); and
• (q) subrule 43.05(2).

34. Form 17 of Schedule 1 to the Rules is replaced by the Form 17 in the schedule to these Rules.

COMING INTO FORCE

35. These Rules come into force on day on which they are published in the Canada Gazette.

SCHEDULE
(Section 34)

Form 17
(Criminal Code, section 625.1, Criminal Proceedings Rules, subrules 28.04(1) to (3), (5), (6) and (8))

PRE-TRIAL CONFERENCE REPORT

ONTARIO

SUPERIOR COURT OF JUSTICE

Region

Court File No. (if known)

NOTE:

• 1. This form must be completed in full in all cases, and signed by the assigned Crown counsel, or a Crown counsel authorized to bind the Crown, and by counsel of record for each accused person, before the first judicial pre-trial conference, unless otherwise ordered, or unless the accused has advised that he or she will definitely be pleading guilty and the only issue to be addressed at the judicial pre-trial conference is sentence.
• 2. Crown and Defence counsel are encouraged to discuss the issues to be addressed at the pre-hearing conference in advance of the conference and to jointly file this form.
• 3. Counsel must provide their position on each issue, and not indicate they “will advise”, or “not as yet”, etc.
• 4. The Crown must complete this form and fax, email or deliver it to the Defence counsel of record, or where there is no counsel of record, to the accused, not later than 10 days before the date scheduled for the pre-hearing conference, case supervision conference or case management conference.
• When the Crown and the Defence will be filing separate pre-trial conference reports, the Crown must fax or deliver to the Superior Court trial office a hard copy of the Crown’s report 10 days before the date scheduled for the pre-trial conference, case supervision conference or case management conference; the Defence must fax or deliver to the Superior Court trial office a hard copy of the Defence report five days before the date scheduled for the pre-trial conference, case supervision conference or case management conference.
• When the Crown and Defence will jointly file a pre-trial conference report, the report must be faxed or delivered in hard copy to the Superior Court trial office five days before the date scheduled for the pre-trial conference, case supervision conference or case management conference.
• 5. If any party changes the position taken on this form, which will be provided to the trial judge, they must provide written notice to the other party and the Superior Court Trial Office of the change in position, in addition to any notice required by the Rules of Court. If counsel have not indicated an application will be brought, the presumption is that it will not be heard. The failure to notify the other side and the Trial Office of any application not indicated on this form will be a factor considered by the trial judge in determining whether the new position has prejudiced the other party, and whether any application may proceed.
• 6. The Crown’s copy of the report must be accompanied by a brief synopsis of the allegations, including how the Crown proposes to prove the allegations.
• 7. Section references in the Form refer to the Criminal Code, unless otherwise indicated.

REGINA v. ___________________________
                 (specify name of accused)

Crown Report, prepared by:

SYNOPSIS ATTACHED

Defence Report, prepared by:

(Counsel for _________________________, if multiple accused.)

Have counsel discussed the issues raised in this form after the committal for trial?

Yes No

Charges:

1. Chronology

• (a) Date(s) of offence(s):
• (b) Date of arrest:
• (c) Date of committal for trial:
• (d) Date indictment filed:

2. Form of judicial interim release

• (a) Is the accused detained in custody on this/these charges? Yes No
• (b) Is the accused detained in custody on any other charges? Yes No

3. Preliminary inquiry

Length:

Waived

Discovery:

Length:

Transcript(s) available: Yes No Date ordered:

4. Disclosure

Complete: Yes No

• (a) Outstanding issues:
• (b) Lost/destroyed:
• (c) Withheld/delayed

5. Mode of trial

Current Election: Judge and jury Judge alone

• (a) Will there be a re-election to be tried by: Judge and jury Judge alone
• (b) Is there any prospect of a re-election? Yes No
• (c) Will the Crown consent? Yes No
• (d) Additional comments regarding re-elections:
• (e) Challenge for cause: Yes No
  • (i) Parks Yes No
  • (ii) Publicity Yes No
  • (iii) Other (please specify):
  • (iv) Will there be an application by the accused under s. 640(2.1) for an order excluding all sworn and unsworn jurors until the jury is selected, and that the same two triers be appointed for all challenges?
  • Yes No
  • (v) Will there be an application by the accused for any other form of exclusion order, or in relation to the triers, not relying on s. 640(2.1)?
  • Yes No
  • (vi) Does the Crown consent to the applications noted above?
  • Yes No
  • (vii) Will there be an application for the judge to direct that 13 or 14 jurors be sworn under s. 631(2.2)?
  • Crown Yes No Defence Yes No
  • (viii) Does the other party consent to the order?
  • Yes No
  • (ix) Will there be a request under s. 631(3.1) for the judge to order the names and numbers of jury panel members to be called out in court?
  • Crown Yes No Defence Yes No
• (f) Does the accused have or seek an order under s. 530 that his/her trial be held in French or as a bilingual trial? Yes No
• (g) Does the Crown oppose or dispute the order? Yes No
• (h) If opposed, how does the Defence intend to establish the evidentiary basis for the application(s)?
• (i) Does the Crown oppose the proposed method of introducing the evidence? Yes No

N/A

6. Pre-trial motions on the Indictment

• (a) Quash committal for trial Yes No
• (b) Quash indictment Yes No
• (c) Quash a count(s) in indictment: Yes No
  • (i) relying on s. 581(1) Yes No
  • (ii) relying on s. 581(3) Yes No
• (d) Sever count(s) in indictment Yes No
• (e) Sever accused Yes No
• (f) Particulars Yes No
• (g) Change of venue Yes No
• (h) Amendment(s) Yes No

CROWN PRE-TRIAL APPLICATIONS

N/A

7. Statements of the accused

• (a) Is the Crown seeking to obtain rulings as to the admissibility of Statements to Persons in authority?
• Yes No
• (b) Brief summary of important contents of the statement(s):
• (c) Is the Crown seeking to introduce the statement? Yes No
• (d) Is the Crown seeking only a ruling as to admissibility? Yes No
• (e) Does the Defence dispute admissibility? Yes No
• (f) Brief summary of Defence position:
• (g) Form of statement: Oral Written Audiotaped Videotaped
• (h) If the statement is audio or video taped, is there a transcript? Yes No
• (i) If no transcript is available, will the Crown provide one in advance of trial? Yes No
• (j) Date to be made available
• (k) Length of statement(s):
• (l) Voir dire required? Yes No
• (m) Voir dire issues:
  • recipient as a person in authority Yes No
  • voluntariness Yes No
  • Charter, s. 10(a) Yes No
  • Charter, s. 10(b) Yes No
  • Charter, s. 7 Yes No
• (n) If the statement is audio or video taped, is there a transcript? Yes No
• (o) If the statement is audio or video taped, is there a transcript? Yes No
• (p) If the statement is audio or video taped, is there a transcript? Yes No

N/A

8. Other disreputable conduct evidence, including similar fact

• (a) Is the Crown seeking to introduce prior disreputable conduct evidence, relying on incidents not covered by the indictment?
• Yes No
• (b) Nature of Evidence:
• (c) Does the Crown seek to have admissibility determined in a pre-trial application?
• Yes No
• (d) If the Crown does not seek to obtain a ruling before trial starts, when does the Crown wish to have the voir dire?
• (e) Does the Defence dispute admissibility? Yes No
• (f) How does the Crown propose to introduce the evidence on the voir dire?
  • (i) Viva voce evidence Yes No
  • (ii) Agreed statement of facts Yes No
  • (iii) Witness statements Yes No
  • (iv) Transcripts Yes No
• (g) Does the Defence consent to the manner in which the Crown seeks to introduce the evidence on the voir dire?
• Yes No
• (h) Comments:
• (i) If no transcript is available, will the Crown provide one in advance of trial?
  Yes No
• Yes No
• (j) Time estimate for voir dire:
  • Evidence
    • Crown
    • Defence
  • Argument
    • Crown
    • Defence

N/A

9.1. Hearsay evidence

• (a) Does the Crown seek to introduce any evidence relying upon a common law exception to the hearsay rule?
• Yes No
• (b) If so, what is the nature of the evidence?
• (c) What is the common law exception upon which the Crown relies? (e.g. dying declaration, spontaneous exclamation, declarations in furtherance of common unlawful design):
• (d) Does the Defence contest admissibility? Yes No
• (e) How does the Crown propose to introduce the evidence on the voir dire?
  • (i) Viva voce evidence Yes No
  • (ii) Agreed statement of facts Yes No
  • (iii) Witness statements Yes No
  • (iv) Transcripts Yes No
• (f) Does the Defence consent to the manner in which the Crown seeks to introduce the evidence on the voir dire?
• Yes No
• (g) Comments:
• (h) Time estimate for voir dire:
  • Evidence
    • Crown
    • Defence
  • Argument
    • Crown
    • Defence

N/A

9.2. Principled Exception to the Hearsay Rule

• (a) Does the Crown seek to introduce any evidence relying upon the principled exception to the hearsay rule?
• Yes No
• (b) If so, what is the nature of the evidence?
• (c) Does the Defence contest admissibility? Yes No
• (d) If yes, does the Defence contest:
  • necessity Yes No
  • reliability Yes No
  • prejudicial effect/probative value Yes No
• (e) How does the Crown propose to introduce the evidence on the voir dire?
  • (i) Viva voce evidence Yes No
  • (ii) Agreed statement of facts Yes No
  • (iii) Witness statements Yes No
  • (iv) Transcripts Yes No
• (f) Does the Defence consent to the manner in which the Crown seeks to introduce the evidence on the voir dire?
• Yes No
• (g) Comments:
• (h) Time estimate for voir dire:
  • Evidence
    • Crown
    • Defence
  • Argument
    • Crown
    • Defence

N/A

10. After-the-fact conduct evidence

• (a) Will the Crown be seeking to tender any evidence of after-the-fact conduct by the accused?
• Yes No
• (b) If so, what is the nature of the evidence?
• (c) Does the Defence contest admissibility? Yes No
• (e) How does the Crown propose to introduce the evidence on the voir dire?
  • (i) Viva voce evidence Yes No
  • (ii) Agreed statement of facts Yes No
  • (iii) Witness statements Yes No
  • (iv) Transcripts Yes No
• (f) Does the Defence consent to the manner in which the Crown seeks to introduce the evidence on the voir dire?
• Yes No
• (g) Comments:
• (h) Time estimate for voir dire:
  • Evidence
    • Crown
    • Defence
  • Argument
    • Crown
    • Defence

N/A

11. Intercepted private communications

• (a) Does the Crown seek to introduce wiretap evidence? Yes No
• (b) Brief overview of evidence:
• (c) Does the Defence require a voir dire to determine admissibility? Yes No
• (d) Brief overview of Defence position:
• (e) Authorization: consent, s. 184.2 authorization, s. 186
• (f) Other:
• (g) Issue to be litigated: facial validity sub-facial validity
• (h) Other:
• (i) Time estimate for voir dire:
  • Evidence
    • Crown
    • Defence
  • Argument
    • Crown
    • Defence

N/A

12. Hearsay evidence

• (a)
• (b)
• (c)
• (d) Time estimate for voir dire:
  • Evidence
    • Crown
    • Defence
  • Argument
    • Crown
    • Defence

N/A

13. Competency of witnesses

• (a) Does the Crown/Defence intend to call any witness who is under the age of 14?
• Yes No
• (b) Does the Crown/Defence intend to challenge the capacity of any witness on the basis of mental capacity?
• Yes No
• (c) Name of witness, and basis of challenge:
• (d) Time estimate for voir dire:
• (e) How does the Crown propose to introduce the evidence on the voir dire?
  • Evidence
    • Crown
    • Defence
  • Argument
    • Crown
    • Defence

N/A

14. Manner in which evidence is to be introduced

• (a) Does the Crown or Defence seek to have any witness’s evidence introduced:
  • (i) by video link, under s. 714.1 or 714.2? Yes No
  • (ii) by reading in evidence previously taken under s. 715? Yes No
  • (iii) by videotaped evidence, under s. 715.1? Yes No
  • (iv) by closed circuit link or behind a screen, under s. 486.2? Yes No
  • (v) other means? Details:
• (b) Does the opposing party consent to the admissibility of the evidence in the manner proposed?
• Yes No
• (c) Will the Crown or any witness under the age of 18 apply for an order under s. 486.3, appointing counsel to cross-examine the witness, if the accused is not represented by counsel?
• Yes No
• (d) Does the accused oppose the order? Yes No
• (e) If opposed, estimated time for:
  • Evidence
    • Crown
    • Defence
  • Argument
    • Crown
    • Defence

N/A

15. Support person

• (a) Will any Crown witness require a support person, under s. 486.1(1)?
• (b) Details:
• (c) Will any Crown witness require a support person, under s. 486.1(2)?
• Yes No
• (d) Details:
• (e) Does the accused oppose the order? Yes No
• (f) If opposed, estimated time for:
  • Evidence
    • Crown
    • Defence
  • Argument
    • Crown
    • Defence

N/A

16. Publication Bans/Deferred Publication Orders

• (a) Does the Crown seek an order under s. 486.4 or 486.5, banning the publication of the complainant’s identity?
• Yes No
• (b) Does the accused oppose the order? Yes No
• (c) Does either party seek other publication bans or deferred publication orders?
• Crown Yes No
• Defence Yes No
• (d) If yes, provide details of order sought, media to be notified, timing of hearing, time estimate for hearing:
• (e) Does the other party oppose the application? Yes No
• (f) If order/application opposed, estimated time for:
  • Evidence
    • Crown
    • Defence
  • Argument
    • Crown
    • Defence

N/A

17. Privilege issues

• (a) Will the Crown be raising issues of privilege? Yes No
• (b) Will the Defence be raising issues of privilege? Yes No
• (c) If yes, please specify the nature of evidence and issue of privilege:
• (d) Basis upon which the party seeking admission rely:
• (e) How does the party claiming privilege seek to introduce the evidence on the voir dire?
  • (i) Viva voce evidence Yes No
  • (ii) Agreed statement of facts Yes No
  • (iii) Witness statements Yes No
  • (iv) Transcripts Yes No
• (f) Does the other party consent to the manner in which the evidence will be introduced on the voir dire?
• Yes No
• (g) Time estimate for voir dire:
  • Evidence
    • Crown
    • Defence
  • Argument
    • Crown
    • Defence

N/A

18. Challenge to Legislation

• (a) Specifics of challenge:
• (b) Does the Crown oppose the application? Yes No
  • Evidence
    • Crown
    • Defence
  • Argument
    • Crown
    • Defence

N/A

19. Applications to stay proceedings based upon:

• (a) Abuse of process
• (b) Charter breach, s. 7
• (c) Charter breach, s. 11(b)
• (d) Entrapment (after finding of guilt)
• (e) Other:
• (f) Overview of Defence position:
• (g) Overview of Crown position:
• (h) Time estimate for voir dire:
  • Evidence
    • Crown
    • Defence
  • Argument
    • Crown
    • Defence

N/A

20. Applications to exclude evidence based upon Charter, s. 24(2) alleging breaches of:

• (a) Charter, s. 7
• Charter, s. 8 warrantless search search warrant order authorization
• Issue: facial validity sub-facial validity execution
• Other:
• Charter, s. 9 other
• (b) Defence position(s) regarding nature of breach and evidence sought to be excluded:
  • (i) Appl. #1:
  • (ii) Appl. #2:
  • (iii) Appl. #2:
• (c) Crowns position(s) regarding nature of breach and evidence sought to be excluded:
  • (i) Appl. #1:
  • (ii) Appl. #2:
  • (iii) Appl. #2:
• (d) Do all counsel agree the applications can be heard in a combined voir dire?
  Yes No

Comments:

• (e) Time estimate for voir dire:
  • Evidence
    • Crown
    • Defence
  • Argument
    • Crown
    • Defence

N/A

21. Third party records applications

By Defence: Yes No

By Crown: Yes No

• (a) Relying upon: Mills, s. 278.2 Yes No
  • O’Connor Yes No
• (b) Nature of records:
• (c) Position of other party:
• (d) Should the application be heard in advance of the trial date? Yes No
• Comments:
• (e) Time estimate for voir dire:
  • Evidence
    • Crown
    • Defence
  • Argument
    • Crown
    • Defence

N/A

22. Evidence of the complainant’s prior sexual activity, s. 276

• (a) Nature of evidence:
• (b) Does the Crown contest admissibility? Yes No
• (c) How does the Defence proposed to introduce evidence on voir dire?
  • (i) Viva voce evidence Yes No
  • (ii) Agreed statement of facts Yes No
  • (iii) Witness statements Yes No
  • (iv) Other: Yes No
• (d) Time estimate for voir dire:
  • Evidence
    • Crown
    • Defence
  • Argument
    • Crown
    • Defence

N/A

23. Evidence of other suspects

• (a) Nature of evidence:
• (b) Does the Crown contest admissibility? Yes No
• (c) How does the Defence proposed to introduce evidence on voir dire?
  • (i) Viva voce evidence Yes No
  • (ii) Agreed statement of facts Yes No
  • (iii) Witness statements Yes No
  • (iv) Other: Yes No
• (d) Time estimate for voir dire:
  • Evidence
    • Crown
    • Defence
  • Argument
    • Crown
    • Defence

N/A

24. Character of victim

• (a) Nature of evidence:
• (b) Does the Crown contest admissibility? Yes No
• (c) Time estimate for voir dire:
  • Evidence
    • Crown
    • Defence
  • Argument
    • Crown
    • Defence

N/A

25. Other Legal issues requiring rulings anticipated by the Defence

• (a)
• (b)
• (c)
• (d) Time estimate for voir dire:
  • Evidence
    • Crown
    • Defence
  • Argument
    • Crown
    • Defence

26. Expert witnesses

N/A

26.1 Crown witnesses

• (a) Does the Crown intend to call expert witnesses? Yes No
• (b) Field(s) of expertise:
• (c) Issues upon which the evidence will be introduced:
• (d) Does the Defence contest the admissibility of the expert evidence? Yes No
• (e) Basis upon which admissibility of evidence contested:
  • legal relevance
  • logical relevance
  • necessity in assisting trier of fact
  • absence of an exclusionary rule
  • expert’s qualifications
• (f) Comments:
• (g) Time estimate for voir dire:
  • Evidence
    • Crown
    • Defence
  • Argument
    • Crown
    • Defence

N/A

26.2 Defence witnesses

• (a) Does the Defence intend to call expert witnesses? Yes No
• (b) Field(s) of expertise:
• (c) Issues upon which the evidence will be introduced:
• (d) Does the Crown contest the admissibility of the expert evidence? Yes No
• (e) Basis upon which admissibility of evidence contested:
  • legal relevance
  • logical relevance
  • necessity in assisting trier of fact
  • absence of an exclusionary rule
  • expert’s qualifications
• (f) Comments:
• (g) Time estimate for voir dire:
  • Evidence
    • Crown
    • Defence
  • Argument
    • Crown
    • Defence

N/A

27. Position of accused in court

• (a) Will there be an application to have the accused sit at counsel table?
  Yes No
• (b) If yes, what is the basis for the application?
• (c) Does the Crown consent? Yes No
• (d) Comments:

N/A

28. Absence of accused from court

• (a) Will there be an application to have the accused sit at counsel table?
  Yes No
• (b) If yes, what is the basis for the application?
• (c) Does the Crown consent? Yes No
• (d) Comments:

N/A

29. Fitness to stand trial

• (a) Will the Crown raise the issue of the accused’s fitness to stand trial?
  Yes No
• (b) Will the Defence raise the issue of the accused’s fitness to stand trial?
  Yes No
• (c) If raised, will the application be opposed? Yes No
• (d) Time estimate for voir dire:
  • Evidence
    • Crown
    • Defence
  • Argument
    • Crown
    • Defence

N/A

30. Interpreters

• (a) Does the accused require an interpreter? Yes No
• (b) If yes, for which language(s)?
• (c) Do any Crown witnesses require an interpreter? Yes No
• (d) If yes, for which language(s)?
• (e) Do any Defence witnesses require an interpreter? Yes No
• (f) If yes, for which language(s)?
• (g) Should two interpreters be required? Yes No
• (h) Comments:

N/A

31. Additional courtroom equipment required

• (a) Elmo projector Yes No
• (b) Television and VCR Yes No
• (c) Television and CD player Yes No
• (d) Television and DVD player
• (e) Hearing devices Yes No
• (f) Teleconference facilities Yes No
• (g) Other:

N/A

32. Additional courtroom equipment required

• (a) Courtroom security issues
• Yes No
• (b) Does either party seek an order closing the courtroom to the public, under s. 486(1)?
• Yes No
• (c) Details:

N/A

33. Other potential legal issues

34. Is it reasonably anticipated that any of the following defences/triable issues will be raised?

• Accident
• Alibis
• Automatism
• Causation
• Compulsion
• Consent
• Defence of property
• Did the alleged event occur?
• Diminished capacity
• Duress
• Entrapment
• “Evidence to the contrary”
• Honest, but mistaken belief in consent
• Identity
• Intoxication
  • Drugs
  • Alcohol
• Knowledge
• Necessity
• Not criminally responsible
• Possession
  • Was the possession for the purpose of trafficking?
• Provocation
• Self-defence

35. Non-contentious issues

• Jurisdiction Admitted Not contested
• Identity of the accused Admitted Not contested
• Continuity of exhibits Admitted Not contested
• Medical evidence Admitted Not contested
• Documentary evidence Admitted Not contested
• Ownership Admitted Not contested
• Value of property Admitted Not contested
• Accused as driver Admitted Not contested
• Death/injuries caused by accused Admitted Not contested
• Expert’s report Admitted Not contested
• Age of complainant Admitted Not contested
• Amount of drug is “for the purpose of trafficking”: Admitted Not contested
• Value of drug Admitted Not contested
• Service of notice Admitted Not contested
• Photographs Admitted Not contested

N/A

36. Other factual, evidentiary or legal admissions sought by the Crown, or conceded by the Defence:

• 1. Does the Defence agree? Yes No
• 2. Does the Defence agree? Yes No
• 3. Does the Defence agree? Yes No
• 4. Does the Defence agree? Yes No
• 5. Does the Defence agree? Yes No

37. Affidavit or certificate evidence

• (a) Does the Crown intend to file affidavit or certificate evidence? Yes No
• (b) If so, please specify:
• (c) Will the Defence seek leave to have the witness testify? Yes No
• (d) Time estimate for voir dire:
  • Evidence
    • Crown
    • Defence
  • Argument
    • Crown
    • Defence

N/A

38. Case management judge

• (a) Will there be an application for the appointment of a case management judge, under s. 551.1?
  • By the Crown Yes No
  • By the Defence Yes No
• (b) Does the other party consent? Yes No
• (c) Issues that Counsel suggest should be determined by case management judge:
• (d) Will there be an application for an order for a joint hearing of issues in common from separate prosecutions, under s. 551.7?
  • By the Crown Yes No
  • By the Defence Yes No
• (e) Common issues that counsel suggest should be determined by case management judge:

39. Positions of the parties

• (a) Crown: Upon what evidentiary basis does the Crown seek to establish liability of each accused?
• (b) Upon which section(s) of the Code does the Crown rely to establish the liability of each accused?
• (c) Does the Crown submit any offences are included in the count(s) in the indictment?
• (d) Does the Defence submit any offences are included in the count(s) in the indictment?
• (e) Defence: What is the position of the Defence?

40. Time estimates

• (a) Anticipated number of Crown witnesses:
• (b) Crown estimate for voir dires: Evidence Argument
• (c) Crown time estimate for trial:
• (d) Defence time estimate for voir dires: Evidence Argument
• (e) Defence time estimate for trial:
• (f) If there are multiple pre-trial applications, can they be heard at the same time? Yes No
• (f) If not, what is the order in which they should be heard?
  • Counsel - Crown
  • Dated ____________________ Signed ___________________________
  • Counsel - Defence
  • Dated ____________________Signed ___________________________

This page is to be removed before the Form is provided to the trial judge.

Accused:

Corbett application:

What is the accused’s criminal record?

Does the accused intend to bring a Corbett application? Yes No

Sentence position:

Crown position on sentence on plea(s) of guilty before trial based upon information currently known to the Crown:

• Plea(s) on which counts:
• Sentence:

Is the Crown’s position based on a joint submission? Yes No

Is the Crown’s position in addition to, or subject to reduction, for pre-trial custody?

Corollary orders sought by Crown:

• 1. DNA Order
• 2. s. 109 prohibition, duration:
• 3. s. 161 order, duration:           , delayed parole:
• 4. Special conditions on probation:
• 5. s. 259 Driving Prohibition, duration:
• 6. Sex Offender Registry order, duration:
• 7. s. 743.21 Non-Communication Order

Crown’s position on sentence after trial based upon information currently known to the Crown:

• Footnote a
  S.C. 1994, c. 44, s. 35
• Footnote b
  S.C. 2002, c. 13, s. 17(2)
• Footnote c
  R.S., c. C-46
• Footnote 1
  SI/2012-7