Criminal Proceedings Rules of the Supreme Court of Newfoundland and Labrador (SI/2018-43)

Marginal note:Alternative Application

12.07 An application under Rule 13 may be heard as an alternative application immediately following a disposition under this Rule.

RULE 13Applications To Appoint Counsel

Marginal note:Application

13.01 This Rule applies to all applications for an order appointing counsel for an accused.

Marginal note:Service

• 13.02 (1) A Notice of Application for an order appointing counsel for an accused, together with all supporting documentary, affidavit and other material intended to be used at the hearing of the application, shall be served on

  • (a) the Attorney General for the province;

  • (b) the prosecutor;

  • (c) any co-accused; and

  • (d) the Legal Aid Commission.

• (2) The parties listed in subrule (1) shall be entitled to be heard on the application.

Marginal note:Materials for Use on Application

• 13.03 (1) The Notice of Application under this Rule shall be accompanied by an affidavit by or on behalf of the accused, detailing:

  • (a) the efforts made by the accused to retain counsel;

  • (b) the reasons why the accused has been unable to retain counsel;

  • (c) whether an application has been made to the Legal Aid Commission for legal assistance and, if so, the status of that application;

  • (d) whether the accused was formerly represented by counsel and when that representation ceased;

  • (e) the name of any counsel who has indicated a willingness to represent the accused in the event an order for counsel is made, and the terms on which he or she is prepared to provide such representation; and

  • (f) such other information as may be relevant to the application.

• (2) The accused shall also file with the court an affidavit by any counsel referred to in clause (1)(e) which confirms his or her willingness to act and the terms on which he or she is prepared to act.

Marginal note:Role of the Legal Aid Commission

• 13.04 (1) The Legal Aid Commission shall cause a representative of the Legal Aid Commission to appear at the hearing of an application under this Rule who is able to:

  • (a) advise the judge as to:

    • (i) whether the accused has applied for legal aid and the status of that application;

    • (ii) the role that the Legal Aid Commission could or should play in relation to the accused thereafter;

    • (iii) whether there are any reasons why a staff solicitor of the Legal Aid Commission could not be appointed to represent the accused and the limitations on such representation;

    • (iv) whether one or more solicitors of the Legal Aid Commission are available and capable of representing the accused and the names of such persons;

    • (v) what period of time may be required for counsel to become familiar with the case; and

    • (vi) such other information as may be relevant to the proper representation of the accused;

    and

  • (b) if an application has not been made to the Legal Aid Commission, take an application for legal aid from the accused immediately following the hearing.

• (2) The information set out in clause (1)(a) may be set out in an affidavit filed with the court which is sworn by an officer of the Legal Aid Commission.

• (3) For the purposes of clause (1)(a), the accused shall be deemed by his or her application to waive solicitor-client privilege with respect to all matters, including financial matters, that relate to his or her ability to retain counsel.

• (4) Following the hearing of the application, the information provided by the Legal Aid Commission shall be sealed and shall not be disclosed to the trial judge, who shall not be the same judge who hears the application.

Marginal note:Order

• 13.05 (1) An order appointing counsel for an accused shall include the following:

  • (a) the name of counsel so appointed;

  • (b) any limitations on the scope of the appointment;

  • (c) the terms upon which the appointment is made; and

  • (d) a requirement that bills of account submitted by the counsel shall, at the option of the Attorney General, be taxed.

• (2) An order made under this Rule may, for cause, be modified or revoked by a judge upon application by the accused, counsel who has been appointed under this Rule or the Attorney General.

RULE 14Applications for Judicial Interim Release and Review

Marginal note:Fundamental Principle

14.01 To the extent that available judicial resources permit, priority shall be given to the scheduling of applications for judicial interim release when setting the court docket.

Marginal note:Application

• 14.02 (1) This Rule applies to applications

  • (a) by an accused under subsections 520(1), 520(8) and 522(1) of the Code;

  • (b) by the prosecutor under subsections 521(1) and (9) of the Code; and,

  • (c) by an accused or the prosecutor at any time prior to the trial, under subparagraph 523(2)(c)(ii) or subsection 523(3) of the Code.

• (2) Except for the requirements set out in rules 14.04 and 14.05, this Rule applies to proceedings for a review of detention under section 525 of the Code with such modifications as are set out in this Rule and the circumstances require.

Marginal note:Hearings under Section 525 of the Code

• 14.03 (1) Where an accused is brought before the court pursuant to section 525 of the Code, the judge:

  • (a) shall determine the issue of judicial interim release in an expeditious manner; and

  • (b) may inquire into the circumstances of the custody of the accused.

• (2) Before or during the hearing under subrule (1), the judge may provide directions for expediting any proceedings in respect of the accused and for the filing of material in support of, or in opposition to, the application.

Marginal note:Contents of Notice

• 14.04 (1) Where the Notice of Application states that the accused is to be present at the hearing of the application, counsel for the accused shall comply with section 527 of the Code.

• (2) Where an application involves a review of a detention order previously made by a Provincial Court judge, the application shall set out:

  • (a) any error in fact or law allegedly made by the Provincial Court judge;

  • (b) the change in circumstances, if any, that has occurred since the decision being reviewed; and

  • (c) such other facts, if any, that are being relied on in support of any submission that a different result ought to have been reached by the Provincial Court judge.

Marginal note:Materials for Use on Application

• 14.05 (1) The Notice of Application shall be accompanied by:

  • (a) where the applicant is the accused, the affidavit of the applicant containing the information required under subrule (2);

  • (b) where the applicant is the accused and it is practicable to do so, the affidavit of any current or prospective employer who proposes to employ the accused upon release;

  • (c) where the applicant is the accused and it is practicable to do so, the affidavit of any person who proposes to serve as a surety for the accused, disclosing his or her willingness to serve as a surety and the amount for which he or she is prepared to be held liable;

  • (d) where the applicant seeks to review a previous order, a transcript of:

    • (i) the proceedings of the judicial interim release hearing under section 515 or 522 of the Code, as the case may be; and

    • (ii) any previous review proceedings taken before a judge,

    unless the judge specifically dispenses with this requirement; and

  • (e) a legible copy of any exhibits, capable of reproduction, which were filed in the original judicial interim release hearing and in any previous review proceedings including a copy of the accused’s criminal record, if any.

• (2) The affidavit of the applicant required by clause (1)(a) shall disclose:

  • (a) the particulars of the charge on which release is sought and any other charge outstanding against the applicant, together with the date or dates scheduled for trial, preliminary inquiry and any other proceeding in respect of such charges;

  • (b) the ordinary residence of the applicant and the address where the applicant proposes to reside if released;

  • (c) the applicant’s employment, if any, when he or she was arrested and where the applicant expects to be employed upon release;

  • (d) the form of order upon which the applicant proposes that release be granted; and

  • (e) where the applicant proposes that release be granted by giving an undertaking with conditions or upon entering into a recognizance with sureties, deposit or conditions, where practicable:

    • (i) the terms and conditions of the order sought, including the amount of any recognizance or deposit;

    • (ii) the names of any proposed surety;

    • (iii) the amount for which each proposed surety is prepared to be held liable; and

    • (iv) with respect to each proposed surety, a declaration that the accused or his counsel has complied with any practice note in force regarding sureties.

• (3) Where a transcript of a previous review proceeding is not available, the applicant’s affidavit shall contain a summary of the material evidence given at the previous proceeding.

• (4) Where the applicant is the prosecutor or where, as respondent, the prosecutor intends to:

  • (a) assert that the detention of the accused is necessary; and

  • (b) rely on material other than required to be filed under subrule (1),

  the prosecutor may file an affidavit setting out the facts upon which reliance is placed, including the matters referred to in paragraph 518(1)(c) of the Code.

Marginal note:No Brief Required

14.06 No brief is required for the purposes of applications under this Rule.

Marginal note:Service

14.07 The Notice of Application and all supporting documentary, affidavit and other material intended to be used at the hearing of the application along with any response shall be served on the parties and filed with the court, together with proof of service, at least two clear days prior to the date fixed for the hearing of the application, unless under subsection 520(2) of the Code, the prosecutor otherwise consents.

RULE 15Applications Raising Constitutional Issues

Marginal note:When this Rule Applies

15.01 Other than an application to exclude evidence, this Rule applies to an application in a criminal proceeding:

• (a) to declare that an enactment of the Parliament of Canada, in whole or in part, is unconstitutional and of no force and effect;

• (b) to declare that a rule or principle of law applicable to a criminal proceeding, in whole or in part, whether on account of subsection 8(2) or (3) of the Code or otherwise is unconstitutional and of no force and effect; or

• (c) to stay proceedings, in whole or in part, on an indictment against an accused in whole or in part or for any other remedy under subsection 24(1) of the Charter or subsection 52(1) of the Constitution Act, 1982.

Marginal note:Time for Application

15.02 An application referred to in rule 15.01 shall be made to:

• (a) the trial judge, where one has been designated; or

• (b) any judge before the commencement of trial, where the trial judge has not been designated.

Marginal note:Application

15.03 The application shall be brought by Notice of Application in accordance with Rule 11 and, in addition, shall include a concise statement of the constitutional issues to be raised, a statement of the constitutional principles to be argued and a reference to any statutory provision or rule on which the applicant relies.

Marginal note:Service and Notice

• 15.04 (1) Service of the Notice of Application and all supporting documentary, affidavit and other material intended to be used at the hearing of the application shall be made on:

  • (a) the regional office of the Attorney General of Canada;

  • (b) the prosecutor having carriage of the proceeding; and

  • (c) such other person and on such terms as a judge may order.

• (2) Where applicable, the applicant shall comply with the notice requirements of section 57 of the Judicature Act.

Marginal note:Materials for Use on Application

• 15.05 (1) A Notice of Application brought under this Rule shall be accompanied by:

  • (a) a copy of the indictment to which the constitutional issue raised in the Notice of Application relates;

  • (b) a transcript of any previous proceeding that is material to a determination of the constitutional issue raised in the Notice of Application;

  • (c) an affidavit of or on behalf of the applicant deposing the matters set out in subrule (2); and

  • (d) a copy of any other material that may be necessary for the hearing and determination of the constitutional issue raised in the Notice of Application.

• (2) The affidavit of or on behalf of the applicant shall include:

  • (a) a description of the deponent’s status and the basis of his or her knowledge of the matters deposed;

  • (b) a statement of the particulars of the charge to which the application relates including, where the application alleges a breach of paragraph 11(b) of the Charter, a full statement of the history of the proceedings against the applicant before the date scheduled for trial; and

  • (c) a statement of all facts material to a just determination of the constitutional issue that are not disclosed in any other material filed in support of the application.

Marginal note:Brief

15.06 Each party appearing on the hearing shall file with the court and serve on every other party a brief containing:

• (a) a succinct outline of the argument the party intends to make;

• (b) a concise statement of the principles of law on which the party relies; and

• (c) copies of relevant cases, statutory provisions and other authorities.

Marginal note:Intervenors

• 15.07 (1) Any person interested in a proceeding between other parties may, by leave of the judge presiding over that proceeding or by order of a judge, intervene in the proceeding on such terms and conditions and with such rights and privileges as the judge may determine.

• (2) Unless otherwise ordered, where an intervenor seeks to rely on material other than that filed by the applicant, respondent or any other person granted leave to intervene, the intervenor shall serve on every party and other intervenor and file with the court, together with proof of service, all supporting documentary, affidavit and other material intended to be used at the hearing of the application no later than seven days before the date of the hearing of the application.

• (3) The brief of an intervenor under rule 15.06 shall be served and filed with the court, together with proof of service, not less than three days before the hearing.