Rules of the Provincial Court of Newfoundland and Labrador in Criminal Proceedings (SI/2004-134)

11.01 This rule applies to applications under section 709 of the Code on behalf of an accused or the prosecutor for an order appointing a commissioner to take the evidence of a witness.

11.02 Applications under rule 11.01 shall be made to a judge sitting in the court centre in which the preliminary inquiry or trial is being held or is to be held, either before or as soon as is reasonably practicable after the date has been fixed for the preliminary inquiry or trial.

11.03 A Notice of Application under rule 11.01 shall include a statement of whether the presence of the accused is required on the taking of the evidence and whether the proceedings on commission are to be videotaped.

11.04 Service of the Notice of Application under rule 11.03 and the supporting materials required by rule 11.05 shall be made on the prosecutor or accused, as the case may be.

Marginal note:Materials to Be Filed

• 11.05 (1) The Notice of Application in Form 1 under rule 11.03 shall be accompanied

  • (a) by an affidavit by or on behalf of the applicant and deposing to the matters described in subrule (2);

  • (b) if the application is made under subparagraph 709(1)(a)(i) of the Code, by the affidavit of a registered medical practitioner describing the nature and extent of the illness and the disability arising therefrom or, if the prosecutor and accused consent, the report in writing of the practitioner; and

  • (c) by a draft order that, if the person is to be examined outside Newfoundland and Labrador, provides for the issuing of a Commission in Form 10 authorizing the taking of evidence before a named commissioner and a letter of request directed to the judicial authorities of the jurisdiction in which the witness is to be found, requesting the assistance of any process that is necessary to compel the witness to attend and be examined before the named commissioner.

• Marginal note:Affidavit by or on Behalf of the Applicant

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

  • (a) particulars of the charge in respect of which the application is made, including a statement of the date on which the preliminary inquiry or trial is scheduled to commence and its anticipated length;

  • (b) a statement of all material facts relied on to justify the belief that an order should be given including, if applicable, a statement of whether

    • (i) the requested jurisdiction will or is likely to respond favourably to a request for judicial assistance,

    • (ii) the manner of response, if favourable, is compatible with the manner in which evidence is taken in criminal proceedings in Canada,

    • (iii) the circumstances of the witness’ residence outside Canada render return to Canada for the preliminary inquiry or trial likely or unlikely, thereby affecting the necessity for the taking of evidence on commission,

    • (iv) the witness has relevant and material evidence to give, receivable in accordance with the rules of evidence applicable in the Canadian proceedings,

    • (v) the witness is willing to attend to give evidence on commission and, if not, the means whereby his or her attendance may be compelled or otherwise ensured,

    • (vi) there will be unfair prejudice to the party opposite by the order of a commission,

    • (vii) there will be any serious disruption of the preliminary inquiry or trial by the taking of such evidence, and

    • (viii) the trier of fact will be disadvantaged, to the prejudice of the parties or either of them, by being unable to observe the demeanour of the witnesses;

  • (c) if known, a statement of the time and place at which the proposed examination is to be conducted;

  • (d) if known, a statement of the identity of the proposed commissioner and of his or her consent to act in that capacity;

  • (e) a description of the manner in which it is proposed to conduct and record the examination, including whether an interpreter will be required and whether it is proposed that the proceedings be videotaped; and

  • (f) a statement of whether the presence of the accused is sought, permitted or required and, if applicable, what arrangements, if any, are proposed in respect of his or her attendance or detention in custody.

• Marginal note:Factum May Be Required

  (3) A judge may require that factums complying with rules 6.06 to 6.08 be filed on applications under this rule.