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

Factums

Marginal note:Application of the Rule

• 6.06 (1) If a filing of a factum is required by order of a judge or if these rules expressly provide for the filing of a factum, this rule and rules 6.07 to 6.09 apply with any necessary modifications to all applications.

• Marginal note:General Requirement

  (2) If a filing of a factum is required by order of a judge or if these rules expressly provide for the filing of a factum, all parties to an application and persons who have been granted the right to be heard shall deliver a factum, to be entitled on its cover “Applicant’s Factum”, “Respondent’s Factum” or “Intervenor’s Factum”, as the case may be.

• Marginal note:Signatures on Factums

  (3) All factums shall be signed by counsel or on counsel’s behalf by someone specifically authorized to do so or, if a party is not represented by counsel, by the applicant or respondent, as the case may be, and the signature shall be followed by the typed name of counsel, if any, and the date.

Applicant’s factum

Marginal note:Filing and Service

• 6.07 (1) Every applicant shall prepare an applicant’s factum and shall file in the court office for the place where the application is to be heard one copy and serve a copy on each of the other parties and persons who have been granted the right to be heard in the proceeding.

• Marginal note:Time for Delivery

  (2) The factum prepared on behalf of the applicant shall be served and filed in accordance with rule 6.05.

• Marginal note:Contents

  (3) The applicant’s factum shall consist of

  • (a) Part I, entitled “Summary of the Facts”, which shall contain a concise summary of the facts relevant to the issues on the application, with such references to the transcript of evidence by page and line, or paragraph, as the case may be, as may be necessary,

  • (b) Part II, entitled “Issues and the Law”, which shall contain a statement of each issue raised, immediately followed by a concise statement of the law and any authorities relating to that issue,

  • (c) Part III, entitled “Order Requested”, which shall contain a statement of the order that the court will be asked to make, and

  • (d) a schedule, entitled “List of Authorities”, which shall contain a list of the authorities (with citations) to which reference was made in Part II and in the order in which they there appear

  in paragraphs numbered consecutively throughout the factum.

Respondent’s factum

Marginal note:Filing and Service

• 6.08 (1) Every respondent shall prepare a respondent’s factum and shall file in the court office for the place where the application is to be heard one copy and serve a copy on each of the other parties and persons who have been granted the right to be heard in the proceedings.

• Marginal note:Time for Delivery

  (2) The respondent’s factum shall be delivered to the court office for the place where the application is to be heard within seven days after service of the applicant’s factum, and not later than three days before the date on which the application is scheduled to be heard.

• Marginal note:Contents

  (3) The respondent’s factum shall consist of

  • (a) Part I, entitled “Respondent’s Statement of Facts”, which shall contain a statement of the facts in Part I of the applicant’s factum that the respondent accepts as correct or substantially correct and those facts with which the respondent disagrees and a concise summary of any additional facts relied on, with any reference to the transcripts of the evidence, by page and line or paragraph, as the case may be, that is necessary,

  • (b) Part II, entitled “Response to Applicant’s Issues”, which shall contain the position of the respondent with respect to each issue raised by the applicant, immediately followed by a concise statement of the law and the authorities relating to that issue,

  • (c) Part III, entitled “Additional Issues”, which shall contain a statement of any additional issues raised by the respondent, immediately followed by a concise statement of the law and the authorities relating to that issue,

  • (d) Part IV, entitled “Order Requested”, which shall contain a statement of the order that the court will be asked to make, and

  • (e) a schedule, entitled “List of Authorities”, which shall contain a list of the authorities (with citations) referred to in the order in which they appear in Parts II and III

  in paragraphs numbered consecutively throughout the factum.

Intervenor’s factum

Marginal note:Filing and Service

• 6.09 (1) Every intervenor shall prepare an intervenor’s factum and shall file in the court office for the place where the application is to be heard one copy and serve one copy on each of the other parties and persons who have been granted the right to be heard in the proceedings.

• Marginal note:Time for Delivery

  (2) The intervenor’s factum shall be delivered to the court office for the place where the application is to be heard within three days after service of the respondent’s factum, and not later than three days before the date on which the application is scheduled to be heard.

• Marginal note:Contents

  (3) The intervenor’s factum shall consist of

  • (a) Part I, entitled “Intervenor’s Statement as to Facts”, which shall contain a statement of the facts in Part I of the applicant’s factum that the intervenor accepts as correct or substantially correct and those facts with which the intervenor disagrees and a concise summary of any additional facts relied on, with any reference to the transcripts of evidence by page and line or paragraph, as the case may be, that is necessary,

  • (b) Part II, entitled “Response to Applicant’s Issues”, which shall contain the position of the intervenor with respect to each issue raised by the applicant, immediately followed by a concise statement of the law and the authorities relating to that issue,

  • (c) Part III, entitled “Additional Issues”, which shall contain a statement of any additional issues raised by the intervenor, immediately followed by a concise statement of the law and the authorities relating to that issue,

  • (d) Part IV, entitled “Order Requested”, which shall contain a statement of the order that the court will be asked to make, and

  • (e) a schedule, entitled “List of Authorities”, which shall contain a list of the authorities (with citations) referred to in the order in which they appear in Parts II and III

  in paragraphs numbered consecutively throughout the factum.

Hearing of applications

6.10 Unless otherwise ordered, an application shall be heard and determined by a judge sitting in the court centre in which the proceeding is being or is to be held.

Evidence on applications — evidence by affidavit

Marginal note:General Rule

• 6.11 (1) Evidence on an application may be given by affidavit in Form 2 and in accordance with rule 4.06, unless a statute provides or a judge orders otherwise in accordance with rule 2.02.

• Marginal note:Service and Filing

  (2) If an application is made on notice, the affidavits on which the application is founded shall be served with the Notice of Application and shall be filed in the court office for the place where the motion or application is to be heard, in accordance with clause 6.05(1)(b).

• (3) All affidavits to be used at the hearing in opposition to an application or in reply shall be served and filed in the court office for the place where the application is to be heard, in accordance with subrule 6.05(3).

• Marginal note:Cross-examination on Affidavit

  (4) Subject to any statute or rule of law, an affiant may be cross-examined on his or her affidavit before the judge presiding on the hearing of the application.

Marginal note:Evidence by Examination of Witnesses

6.12 Subject to any statute or rule of law, a witness may be examined or cross-examined on the hearing of an application with leave of the presiding judge, and nothing in these rules shall be construed to affect the authority of a judge hearing an application to receive evidence through the examination of witnesses.

Marginal note:Use of Agreed Statement of Facts

6.13 A judge, before or on the hearing of the application, may dispense with the filing of any transcript or affidavit required in these rules and act on a statement of facts agreed on by the prosecutor and the accused person or his or her counsel of record.

Abandonment of Applications

Marginal note:Notice

• 6.14 (1) If an applicant desires to abandon the application, the applicant shall serve, in any manner provided by Rule 5, a Notice of Abandonment in Form 6, signed by counsel of record in the application, or by the applicant, in which case the signature shall be witnessed by counsel or an officer of the institution in which the applicant is confined, or a person authorized to administer oaths.

Dismissal as Abandoned

• (2) A judge in chambers may thereon dismiss the application as an abandoned application, without the attendance of counsel of record or the applicant.

• Marginal note:Dismissal for Failure to Appear

  (3) An applicant who fails to appear at the hearing of an application shall be deemed to have wholly abandoned the application, unless the court orders otherwise in accordance with rule 2.02.

Rule 7 — Directions

Marginal note:Power to Issue Directions

7.01 The Chief Judge may from time to time issue directions not inconsistent with these rules, in relation to the supervision and direction of the sittings and the assignment of judicial duties.

PART IIPre-trial Proceedings

Rule 8 — Release of Exhibits for Scientific Testing

Application

8.01 This rule applies to applications made under subsection 605(1) of the Code on behalf of the accused or the prosecutor for the release of an exhibit for the purpose of a scientific or other test or examination.

Marginal note:To Whom Application Made

8.02 Applications under rule 8.01 shall be made to a judge sitting at the court centre in which the proceeding is being held or is to be held.

Service of Notice

Marginal note:General Rule

• 8.03 (1) Service of a Notice of Application under this rule and the supporting materials required by rule 8.04 shall be made on the prosecutor or accused, as the case may be, in accordance with Rule 5, not later than three days before the date fixed for the hearing of the application.

• Marginal note:Filing with Proof of Service

  (2) The Notice of Application and supporting materials, together with proof of service thereof, shall be filed in the court office for the place where the application is to be heard, not later than one day before the date fixed for the hearing of the application.

Material for Use on Application

Marginal note:Materials to Be Filed

• 8.04 (1) The Notice of Application under this rule shall be accompanied by an affidavit by or on behalf of the applicant deposing to the reasons for the application and setting out the measures proposed to ensure the safeguarding of the exhibit and its preservation for use at the trial.

• Marginal note:Factum May Be Required

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

Consent in Writing

8.05 The respondent may consent in writing to the order sought, on terms included in a draft order in Form 7, and a judge may grant the order without the attendance of counsel.

Order Directing Release of Exhibits

Marginal note:Form of Order

• 8.06 (1) An order directing the release of exhibits for the purpose of a scientific test or other examination under subsection 605(1) of the Code and that order shall be in Form 7.

• Marginal note:Sufficiency of Order

  (2) The order shall be sufficient authority for the person with custody of the exhibit to be tested or examined to release the exhibit for that purpose and thereafter to regain custody of it in accordance with its terms.

Rule 9 — Applications to Change the Venue of Trial

9.01 An information is returnable to the judicial centre of the judicial district where it is alleged that the offence occurred, and shall be dealt with in that judicial district unless, on application made, it is ordered by a judge in Form 8 to be transferred to another judicial district.

Rule 10 — Applications to Procure Attendance of Prisoners

Application

10.01 This rule applies to applications under subsection 527(1) of the Code to procure the attendance of a person who is confined in a prison in Newfoundland and Labrador and under subsection 527(7) of the Code to transfer a prisoner or a person in the custody of a peace officer in Newfoundland and Labrador to the custody of another peace officer to assist a peace officer acting in the execution of his or her duties.

To Whom Application Made

Marginal note:Applications for Attendance at Court Proceedings

• 10.02 (1) Applications under rule 10.01 made under subsection 527(1) of the Code shall be made to a judge sitting in the court centre in which the proceedings to which the application relates are scheduled to take place, as soon as is reasonably practicable and sufficiently in advance of the required attendance to ensure that no adjournment of the proceedings will be required for that purpose.

• Marginal note:Applications for Transfer from Custody

  (2) Applications under rule 10.01 made under subsection 527(7) of the Code shall be made to a judge sitting in the court centre to which the prisoner or the person in the custody of a peace officer is to be transferred or in which the prisoner is incarcerated or in which the person is in the custody of a peace officer.

Filing of Notice

10.03 The Notice of Application and supporting materials shall be filed in the court office for the place where the application is to be determined, as soon as is reasonably practicable, before the day on which the application is to be determined.

Materials for Use on Application

Marginal note:Materials to Be Filed

• 10.04 (1) The Notice of Application under this rule shall also be accompanied

  • (a) if the application is made under subsection 527(1) of the Code, by an affidavit by or on behalf of the applicant deposing to the matters described in subrule (2);

  • (b) if the application is made under subsection 527(7) of the Code, by an affidavit by or on behalf of the prosecutor setting out the matters described in subrule (3);

  • (c) if the application is made under subsection 527(7) of the Code, by the written consent of the prisoner or of the person in the custody of a peace officer to the order proposed;

  • (d) by a draft order in Form 9(a) or 9(b), as the case may be; and

  • (e) by a copy of any other material in the court file that is necessary for the determination of the application.

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

  (2) The affidavit of or on behalf of the applicant required by clause (1)(a) for an application under subsection 527(1) of the Code shall contain

  • (a) particulars of the charge in respect of which the application is made, including a statement of the date on which the proceedings in which the prisoner’s attendance is required are scheduled to commence or resume, as the case may be;

  • (b) particulars of the date on or period within which, as well as the locations at which, the attendance of the prisoner will or may be required;

  • (c) particulars relating to the detention of the prisoner; and

  • (d) a statement of the reasons why the prisoner’s attendance is required.

• (3) The affidavit of or on behalf of the applicant required by clause (1)(b) for an application under subsection 527(7) of the Code shall contain

  • (a) a description of the status of the peace officer to whose custody it is sought to transfer the prisoner or person in the custody of a peace officer;

  • (b) a statement or description of the purpose for which the transfer is sought;

  • (c) particulars relating to the detention of the prisoner or of the person in the custody of a peace officer;

  • (d) a statement or description of the nature of the assistance that it is reasonably anticipated the prisoner or person in the custody of a peace officer will provide, if transferred;

  • (e) a statement of whether the assistance reasonably anticipated is available from other sources;

  • (f) a statement of whether notice of the application has been given to the solicitor of record of the prisoner or of the person in the custody of a peace officer;

  • (g) as an exhibit, the written consent of the prisoner or of the person in the custody of a peace officer to the proposed transfer;

  • (h) a description of the procedures to be followed to ensure the custody and security of the prisoner or of the person in the custody of a peace officer;

  • (i) a statement of particulars of the period for which the transfer is required; and

  • (j) a general description of the locations at which the attendance of the prisoner or of the person in the custody of a peace officer will be required.

• Marginal note:Application Record and Factum

  (4) Unless otherwise ordered by the judge before whom an application referred to in this rule, made under subsection 527(1) or (7) of the Code, is returnable, no application record or factum is required.

• Marginal note:Attendance Not Required

  (5) Unless otherwise ordered by the judge before whom an application under this rule, made under subsection 527(1) or (7) of the Code, is returnable, the order sought may be given ex parte and without the attendance of the counsel of record for the applicant.