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

Regulations are current to 2017-11-20 and last amended on 2014-01-01. Previous Versions

Rule 31 Applications to Exclude Evidence

 This rule applies where a party seeks to exclude evidence that is presumptively admissible at common law for all issues that it is reasonably foreseeable another party will seek to introduce in the proceedings, including but not only:

  • (a) evidence of prior criminal convictions of an accused;

  • (b) evidence of after-the-fact or post-offence conduct; and,

  • (c) evidence alleged to have been obtained by constitutional infringement exclusion of which is sought under Section 24(2) of the Charter.

To Whom Made

General Rule

  •  (1) An application to exclude evidence that is presumptively admissible shall be made to the judge who is scheduled to preside or is presiding in the proceedings in which the evidence is tendered for admission.

Exception
  • (2) Despite subrule (1), where the parties expressly agree that applications to exclude evidence may be heard and determined by a judge other than the trial judge and that rulings made on these applications will be incorporated into the record of the proceedings in which the evidence is tendered for admission, the pre-trial conference or case management judge may make an order to give effect to the parties’ agreement and the applications may be heard and determined by a judge other than the designated trial judge.

  • SI/2014-5, s. 18.

Requirement of Notice

Form of Notice

  •  (1) Applications to exclude evidence under this rule shall be commenced by a notice of application in Form 1.

Contents of Notice
  • (2) The notice of application in Form 1 shall state:

    • (a) the place and date of hearing as determined in accordance with these rules;

    • (b) a detailed description of the presumptively admissible evidence the applicant seeks to exclude in the proceedings;

    • (c) a precise, case-specific statement of the basis and grounds upon which the evidence is said to be inadmissible;

    • (d) a detailed summary of the evidence or other material upon which the party seeking exclusion relies and a statement of the manner in which the applicant proposes to introduce the evidence;

    • (e) an estimate of the time required to introduce the evidence and other material to be relied upon in support of the application; and,

    • (f) whether any order is required abridging or extending any times established by the pre-trial conference or case management judge or required for service and filing by this rule.

Filing and Service of Notice

General Rule

  •  (1) Any party who seeks to have evidence excluded under this rule shall give the notice required by rule 31.03 not less than thirty (30) days before the day first scheduled for the hearing of the pre-trial motions or trial, as the case may be, unless otherwise ordered by a judge under these rules.

Manner of Service
  • (2) Service of the notice of application in Form 1 and any other supporting materials required by these rules or ordered by a judge shall be made in accordance with rule 5.

Filing of Proof of Service
  • (3) The notice of application in Form 1 and any other supporting materials required by these rules or ordered by a judge, together with proof of service, shall be filed in the office of the clerk of the court in the place where the application is to be heard, not later than thirty (30) days before the day first scheduled for the hearing of the pre-trial motions or trial, as the case may be unless otherwise ordered by a judge of the court.

Materials for Use on Application

Application Records

  •  (1) In addition to any other materials that may be required by these rules or by order of a judge of the court, an applicant under this rule shall include in an application record:

    • (a) the notice of application in Form 1;

    • (b) a copy of the indictment to which the application relates;

    • (c) legible copies of any reproducible materials relied upon in support of the application where it is proposed to argue the case for exclusion in whole or in part on a basis other than the testimony of witnesses;

    • (d) where it is proposed to argue the case for exclusion in whole or in part on the basis of testimony of witnesses, legible copies of prior statements or statements of anticipated evidence in sufficient detail to show the essential features of the evidence proposed for admission; and,

    • (e) any other materials that may reasonably assist the judge in identifying and determining the admissibility issues raised.

Respondent’s Application Record
  • (2) Where the respondent seeks to rely on material other than that filed by the applicant, the respondent shall file a respondent’s application record and any other materials on which the respondent proposes to rely.

Books of Authorities
  • (3) Books of authorities shall be served and filed in accordance with rule 32, unless otherwise ordered by a judge of the court.

Factums
  • (4) Factums are not required for applications made under this rule, unless otherwise ordered by a judge of the court.

  • (5) Where a judge orders that factums be served and filed on an application under this rule, the factums shall comply with rule 33, unless otherwise ordered by a judge of the court.

Rule 32 Books of Authorities

  •  (1) Books of authorities shall be served and filed by the applicant not later than thirty (30) days before the day first scheduled for the hearing of pre-trial applications or trial, as the case may be, unless otherwise ordered by a judge of the court under these rules.

Respondent’s Authorities

  • (2) Where factums are required, books of authorities shall be served and filed by the respondent not later than ten (10) days before the first day scheduled for the hearing of pre-trial applications or trial, as the case may be, and where factums are not required, not later than five (5) days before the same date, unless otherwise ordered by a judge of the court under these rules.

Authorities Included

  • (3) The books of authorities shall contain only those authorities that the parties intend to refer to in oral argument.

Marking of Authorities

  • (4) The portions of the authorities to which reference may be made in oral argument shall be highlighted or sidebarred.

Legibility of Authorities

  • (5) The copies of the authorities shall be legible and may be printed on both sides of each page.

Duplication of Authorities

  • (6) A party shall not duplicate authorities filed by any other party.

Colour of Cover

  • (7) The book of authorities shall be bound front and back in coloured stock of the same colour as the party’s factum, or as the factum would be if filed.

Rule 33 Factums

  •  (1) Where a judge orders or these rules require that factums be filed, each party shall serve and file a factum, to be entitled and described on its cover as “Applicant’s Factum”, “Respondent’s Factum”, or as the case may be.

Factum to be Signed and Dated

  • (2) A factum shall be signed by counsel of record or on counsel’s behalf by someone specifically authorized to do so, or by the applicant or respondent if self-represented and the signature shall be followed by the typed name of counsel, if any, and the date.

Contents of Applicant’s Factum

  • (3) The applicant’s factum shall consist of the following parts:

    • (a) Part I, with the caption, “Statement of the Case”, containing a brief but specific summary of the evidence to which the application relates, together with a statement, with reasonable particularity, of the grounds upon which admission or exclusion is made;

    • (b) Part II, with the caption, “Summary of the Facts”, containing a concise summary of the facts relevant to the issues in the application;

    • (c) Part III, with the caption, “Issues and Law”, containing a statement of each issue raised, immediately followed by a concise statement of the law and the authorities relating to that issue;

    • (d) Part IV, with the caption, “Order Requested”, containing a statement of the order that the court will be asked to make;

    • (e) Schedule A, with the caption, “Authorities to be Cited”, containing a list of the authorities referred to in the factum, together with citations, in the order in which they appear in Part III or in alphabetical order; and

    • (f) Schedule B, with the caption, “Relevant Legislative Provisions”, containing the text of all relevant statues except any provisions of the Constitution Act, Criminal Code and Youth Criminal Justice Act.

    in paragraphs consecutively numbered throughout the factum.

Contents of Respondent’s Factum

  • (4) The respondent’s factum shall consist of the following parts:

    • (a) Part I, with the caption, “Respondent’s Statement of the Facts”, containing a statement of the facts in Part II of the applicant’s factum that the respondent accepts as correct or substantially correct, and those facts with which the respondent disagrees, along with a concise summary of any additional facts upon which the respondent relies;

    • (b) Part II, with the caption, “Response to Applicant’s Issues”, containing the respondent’s position on 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, with the caption, “Additional Issues”, and containing 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, with the caption, “Order Requested”, containing a statement of the order that the respondent will ask the court to make;

    • (e) Schedule A, with the caption, “Authorities to be Cited”, containing a list of the authorities referred to in the factum, together with citations in the order in which they appear in Part II and Part III, or in alphabetical order; and

    • (f) Schedule B, with the caption, “Relevant Legislative Provisions”, containing the text of all relevant statutes, except any provisions of the Constitution Act, Criminal Code and Youth Criminal Justice Act,

    in paragraphs consecutively numbered throughout the factum.

Contents of Intervenor’s Factum

  • (5) Every intervenor shall prepare and file an “Intervenor’s Factum” that shall consist of:

    • (a) Part I entitled “Intervenor’s Statement as to Facts”, which shall contain a statement of the facts in Part II 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 such reference to the transcripts of evidence by page and line or paragraph, as the case may be, as 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 “Authorities to be Cited”, which shall contain a list of the authorities (with citations) referred to in the order in which they appear in Parts II and III, or in alphabetical order,

    in paragraphs numbered consecutively throughout the factum.

Length of Factum

  • (6) Unless ordered otherwise by a judge, Parts I through IV of the factum, inclusive, shall not exceed twenty (20) pages in length.

Form of Factum

  • (7) The applicant’s factum shall be bound front and back in blue cover stock, the respondent’s factum shall be bound front and back in green cover stock and the intervenor’s factum shall be bound front and back in grey cover stock.

  • (8) The factum shall be printed on good quality white paper 216 millimeters by 279 millimeters in size and the text shall be printed, typewritten, written or reproduced legibly on one side only with double spaces between the lines, except for quotations which may be single spaced, and margins of approximately forty millimeters on the left-hand side.

  • (9) The characters used shall be at least 12 point or 10 pitch size.

  • (10) Back sheets and covers shall be of 176g/m2 cover stock.

  • (11) The Registrar may refuse to accept a factum which does not comply with these rules, and in that case, the factum shall not be filed without a direction from a judge.

Service and Filing of Factums

  • (12) Unless otherwise ordered by a judge, the applicant’s factum shall be served and filed in accordance with rule 5 not later than thirty (30) days before the day first scheduled for the hearing of the pre-trial applications or the trial as the case may be.

  • (13) Unless otherwise ordered by a judge, the respondent’s factum shall be served and filed in accordance with rule 5 not later than ten (10) days before the day first scheduled for the hearing of the pre-trial applications or the trial as the case may be.

  • (14) Unless otherwise ordered by a judge, an intervenor’s factum shall be served and filed in accordance with rule 5 not later than five (5) days before the day scheduled for the hearing of the application to which it relates.

 
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