Rule 43 Extraordinary Remedies
[Code, s. 774 ff.]
Application of the Rule
43.01 This rule applies to applications in criminal matters by way of certiorari, habeas corpus, mandamus, procedendo and prohibition, including applications to quash a subpoena, warrant, conviction, inquisition or other order or determination and applications for discharge of a person in custody.
To Whom Application Made
43.02 Applications made under rule 43.01 shall be made to a judge of the court in the region, county or district in which the proceedings to which the application relates have been, are being or are to be taken.
Contents of Notice
43.03 (1) A notice of application under this rule shall be in Form 1 and comply with rule 6.03 and shall also state the subpoena, warrant or other order or determination to which the application relates.
Applications to Quash
(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 Rule 43.03(3) of the Criminal Proceedings Rules of the Superior Court of Justice, 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
Solicitor for the Applicant
Court Services Manager at
(or coroner, or as the case may be)
Return to Clerk
(3) Upon receipt of the notice of application endorsed under subrule (2), the Court Services Manager or coroner, as the case may be, shall forthwith return to the Clerk’s Office at the place where the application is returnable true copies of the conviction, order, or warrant, together with true copies of the indictment, information, exhibits and any other proceedings or documents touching the matter, and the notice served upon him or her with a certificate attached thereto in the following form:
Pursuant to the accompanying notice I herewith return to this Honourable Court the following:
True copies of:
1. the information;
2. the conviction (or as the case may be);
3. the exhibits, if capable of reproduction and relevant to the matters in question;
4. any other papers or documents touching the matter, if capable of reproduction and relevant to the matters in question.
And I hereby certify to this Honourable Court that I have above truly set forth all exhibits, papers and documents in my custody or power relating to the matter set forth in the said notice of application.
Court Services Manager (or coroner, as the case may be)
Effect of Return
(4) Subject to subrules (5) and (6), the documents listed in the certificate under subrule (3), together with any transcript of the proceedings filed by the applicant, shall have the same effect in law as a return to a writ of certiorari.
(5) Subject to subrule (6), service of a notice of application to quash under subrule (2) upon a provincial court judge, justice or justices, coroner, or as the case may be, suspends the proceedings which are the subject of the application.
(6) A judge may, upon service of a notice of application therefor in such manner, if at all, as the judge may direct, order that the proceedings which are the subject of the application to quash shall continue upon such terms as appear just.
Further or Amended Return
(7) The judge hearing an application to quash may direct a further or amended return.
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