Part IV: Summary Conviction Appeals and Extraordinary Remedies [Rules 40-49] (continued)
Rule 43 Extraordinary Remedies[Code, s. 774 ff.] (continued)
Materials for Use on Application
Materials to be Filed
(a) a copy of the subpoena, warrant, conviction or other order or determination which is the subject of the application;
(b) a copy of the indictment (information) containing the charge to which the application relates;
(c) where there is no or an incomplete record of the proceedings giving rise to the issuance of the subpoena, warrant or other order or determination which is the subject of the application, an affidavit of or on behalf of the applicant deposing to the matters described in subrule (2);
(d) a transcript of the proceedings giving rise to the issuance of the subpoena, warrant or other order or determination which is the subject of the application; and,
(e) a copy of any other material in the court file that is necessary for the hearing and determination of the application.
Affidavit of or on Behalf of the Applicant
(2) The affidavit of or on behalf of the applicant described in paragraph (1)(c) shall include:
(a) a description of the affiant’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, together with a date or dates scheduled for trial or preliminary inquiry in respect of such charge;
(c) a statement of all facts material to a just determination of the application which are not disclosed in any other materials filed in support of the application;
(d) where the applicant seeks habeas corpus to obtain release from custody, the consent of the applicant to dispense with the issue of the writ of habeas corpus, the return thereto, and the presence of the applicant before the judge determining the application; and,
(e) where the applicant seeks habeas corpus to obtain release from custody, a statement that the applicant is not required to be detained in custody in respect of any other matter.
Cross-Examination on Affidavits
(3) Where an affidavit has been filed under this rule, the party opposite may cross-examine on such affidavit in accordance with rule 6.07.
Use of Agreed Statement of Facts
(4) A judge, before or upon the hearing of the application, may act upon a statement of facts in accordance with rule 6.09.
Applicant’s Application Record and Factum
(5) The applicant shall prepare, serve and file an Application Record and Factum in accordance with subrules 6.05(1) and (2) and rule 33.
Respondent’s Application Record and Factum
(6) The respondent shall prepare, serve and file an Application Record and Factum in accordance with subrules 6.05(3) and (4) and rule 33.
- SI/2014-5, ss. 30, 33(E)
Consent in Writing
43.06 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 in the circumstances, may grant the order on such terms as are contained in the draft order filed without the attendance of solicitors.
Rules 50.01 to 50.09: Repealed.
- Date modified: