Criminal Proceedings Rules for the Superior Court of Justice (Ontario) (SI/2012-7)

24.06 The respondent may consent in writing to the order sought upon terms included in a draft order in Form 14 filed and a judge, satisfied that the relief sought by the applicant should be granted, may grant the order on such terms without the attendance of solicitors.

• 24.07 (1) Where an order is made that the evidence of a witness may be taken by a commissioner, the judge granting the order may determine:

  • (a) the time and place of the examination;

  • (b) the minimum notice period required;

  • (c) the name of the commissioner;

  • (d) the witness fee, if any, to be paid to the witness whose evidence is to be taken by the commissioner; and,

  • (e) any other matter respecting the holding of the examination including the presence of the accused and his or her solicitor of record upon such commission and payment of those expenses of the commission which are to be borne by the applicant.

• (2) Where the witness is to be examined outside Ontario, the order under subrule (1) shall, upon the request of the applicant, provide for the issuing of:

  • (a) a commission in Form 14 authorizing the taking of evidence before a named commissioner; and,

  • (b) a letter of request in Form 15 directed to the judicial authorities of the jurisdiction in which the proposed witness is to be found, requesting the issuing of such process as is necessary to compel the witness to attend and be examined before the commissioner, and the order shall be in Form 16.

• (3) The commission and letter of request shall be prepared and issued by the clerk.

• (4) A commissioner shall, to the extent that it is possible to do so, conduct the examination in the form of oral questions and answers in accordance with these rules, the law of evidence applicable to criminal trials and the terms of the commission, unless some other form of examination is required by the order or the law of the place where the examination is conducted.

• (5) As soon as the transcript of the examination is prepared, the commissioner shall:

  • (a) return the commission, together with the original transcript and exhibits, to the clerk who issued it;

  • (b) keep a copy of the transcript and, where practicable, the exhibits; and,

  • (c) notify the parties who appeared at the examination that the transcript is complete and has been returned to the clerk who issued the commission.

• (6) The clerk shall send the transcript to the solicitor of record for the applicant or the applicant, as the case may be, who shall forthwith serve every other party with the transcript free of charge.

• 24.08 (1) Before being examined, the witness shall take an oath or make an affirmation or, where the conditions of s. 16(3) of the Canada Evidence Act have been met, make a promise to tell the truth, and, where the examination is conducted in Ontario, the oath or affirmation shall be administered by the commissioner or by another person authorized to administer oaths in Ontario, or where the conditions of s. 16(3) of the Canada Evidence Act have been met, the promise to tell the truth shall be made to that person.

• (2) Where the examination is conducted outside Ontario, the oath or affirmation may be administered by or the promise to tell the truth made to the person before whom the examination is conducted, a person authorized to administer oaths in Ontario or a person authorized to take affidavits or administer oaths or affirmations in the jurisdiction where the examination is conducted.