Service and Filing of Notice
41.04 (1) Service of the notice of application under subrule 41.03(1) and of the supporting materials required by subrule 41.03(2) shall be made upon the respondent, in accordance with rule 5, at least 2 clear days before the date fixed for the hearing of the application.
Filing with Proof of Service
(2) The notice of application and supporting materials, together with proof of service thereof, shall be filed at least 2 clear days before the date fixed for the hearing of the application.
Consent in Writing
41.05 The respondent may consent in writing to the order sought upon terms included in a draft order 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 counsel.
Limitation on Stay or Suspension
41.06 Unless otherwise ordered by the judge hearing the application or determining the application in chambers on consent, an order staying or suspending an order imposed by the trial court shall contain a date when the stay or suspension will expire that is not later than 9 months from the date of the order.
Rule 42: Release from Custody Pending Appeal
[Code ss. 816 & 832(1)]
Application of the Rule
42.01 This rule applies to applications by a person who was the defendant in a summary conviction proceeding and by whom an appeal has been taken under section 813 or 830 of the Code for release from custody pending the hearing or determination of the appeal.
To Whom Application Made
42.02 An application referred to in rule 42.01 shall be made to a judge in the region or county in which the appeal to which the application relates is to be heard.
Materials for Use on Application
Materials to be Filed
42.03 (1) The notice of application in Form 1 under this rule shall be accompanied by:
(a) a copy of the information in which is contained the charge in respect of which the appeal is taken;
(b) a copy of the notice of appeal and any supplementary notice of appeal;
(c) a properly signed and commissioned affidavit of the applicant deposing to the matters described in subrule (2); and,
(d) a copy of any other material in the court file that is necessary for the hearing and determination of the application.
Affidavit of the Applicant
(2) The affidavit of the applicant required by clause (1)(c) shall state:
(a) the particulars of the conviction and, where applicable, sentence imposed at trial;
(b) any grounds of appeal not specified in the notice of appeal or supplementary notice of appeal;
(c) the places of abode of the appellant in the three years preceding the conviction, and where the appellant proposes to reside if released;
(d) the employment of the appellant prior to conviction and whether the appellant expects to be employed if released and, if so, where;
(e) the criminal record of the appellant, if any;
(f) what hardship would be caused if the appellant were to be detained in custody pending the determination of the appeal; and,
(g) where the appellant proposes to enter into a recognizance with sureties, the amount of money or value of other security that the appellant proposes should be deposited and, where practicable, the names of the sureties and the amount for which each is to be liable.
Affidavit on Behalf of the Prosecutor
(3) Where the prosecutor wishes to assert that the detention of the applicant is necessary in the public interest, and to rely on material other than required to be filed under subrule (1) or (2), the prosecutor shall serve and file an affidavit setting out the facts upon which reliance is placed.
Cross-Examination on Affidavits
(4) Where an affidavit has been filed under this rule, the party opposite may cross-examine on such affidavit in accordance with rule 6.07.
Applicant’s Application Record and Factum
(5) The applicant shall prepare an application record which shall contain, in consecutively numbered pages arranged in the following order:
(a) a table of contents describing each document, including each exhibit, by its nature and date and, in the case of an exhibit, by exhibit number or letter;
(b) a copy of the notice of application;
(c) a copy of all material required to be filed under subrule (1), including a list of all relevant transcripts of evidence in chronological order, but not necessarily the transcripts themselves; and,
(d) a copy of any other material in the court file that is necessary for the hearing of the application,
but, unless a judge otherwise orders, no factum is required.
Respondent’s Application Record and Factum
(6) Where the respondent is of the opinion that the application record is incomplete, the respondent shall, as soon as practicable after being served with the application record, prepare, serve and file with the clerk of the court in the place where the application is to be heard the respondent’s application record containing:
(a) a table of contents describing each document, including each exhibit, by its nature and date and in the case of an exhibit, by exhibit number or letter; and,
(b) a copy of the material to be used by the respondent on the application and not included in the application record,
but, unless a judge otherwise orders, no factum shall be required.
Material May be Filed as Part of Record
(7) Any material 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.
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