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

Regulations are current to 2024-02-20 and last amended on 2014-01-01. Previous Versions

Part I: General Matters [Rules 1-19] (continued)

Rule 5 Service of Documents (continued)

Substituted Service or Dispensing with Service

Where Order May be Made
  •  (1) Where it appears to the court that it is impractical for any reason to effect prompt personal service of a notice of application, notice of appeal or any other document required to be served personally or by an alternative to personal service under these rules, the court may make an order for substituted service or, where necessary in the interests of justice, may dispense with service.

Effective Date of Service
  • (2) In an order for substituted service, the court shall specify when service in accordance with the order is effective.

  • (3) Where an order is made dispensing with service of a document, the document shall be deemed to have been served on the date of the order for the purpose of the computation of time under these rules.

Service on Solicitor of Record

  •  (1) Service of a document on the solicitor of record of a party may be made:

    • (a) by mailing a copy to the solicitor’s office;

    • (b) by leaving a copy with a solicitor or employee in the solicitor’s office;

    • (c) by depositing a copy at a document exchange of which the solicitor is a member or subscriber, but service under this paragraph is effective only if the document or a copy of it and the copy deposited are date stamped by the document exchange in the presence of the person depositing the copy;

    • (d) by telephone transmission of a facsimile of the document in accordance with subrule (3); or

    • (e) by emailing a copy to the solicitor’s office in accordance with subrule (4).

  • (2) Service of a document by depositing a copy at a document exchange under paragraph (1)(c) is effective on the day following the day on which it was deposited and date stamped, unless that following day is a holiday, in which case service is effective on the next day that is not a holiday.

  • (3) A document that is served by telephone transmission shall include a cover page indicating:

    • (a) the sender’s name, address and telephone number;

    • (b) the name of the solicitor of record to be served;

    • (c) the date and time of transmission;

    • (d) the total number of pages transmitted, including the cover page;

    • (e) the telephone number from which the document is transmitted; and,

    • (f) the name and telephone number of a person to contact in the event of transmission problems.

  • (4) Service of a document in accordance with paragraph (1)(e) is effective only if:

    • (a) the email message includes

      • (i) the sender’s name, address, telephone number, fax number and email address;

      • (ii) the date and time of transmission; and

      • (iii) the name and telephone number of a person to contact in the event of transmission problems; and

    • (b) the solicitor of record provides an acceptance of service by email and confirms the date of the acceptance. If the email acceptance is received between 4 p.m. and midnight, service is deemed to have been made on the following day.

  • SI/2014-5, ss. 4, 33(E)

Service by Mail

Manner of Service
  •  (1) Where a document is to be served by mail under these rules, a copy of the document shall be sent by prepaid first class mail or by registered or certified mail.

Effective Date
  • (2) Service of a document by mail, except under subrule 5.03(4), is effective on the fifth day after the document is mailed.

Where Document Does Not Reach Person Served

 Even though a person has been served with a document in accordance with these rules, the person may show on a motion to set aside the consequences of default, for an extension of time or in support of a request for an adjournment, that the document:

  • (a) did not come to his or her notice; or,

  • (b) came to his or her notice only at some time later than when it was served or is deemed to have been served.

Validating Service

 Where a document has been served in a manner other than one authorized by these rules or an order, the court may make an order validating the service where the court is satisfied that:

  • (a) the document came to the notice of the person to be served; or,

  • (b) the document was served in such a manner that it would have come to the notice of the person to be served, except for the person’s own attempts to evade service.

Proof of Service

Affidavit of Service
  •  (1) Service of a document may be proved by an affidavit of the person who served it in Form 7.

Sheriff’s Certificate
  • (2) Personal service or service under subrule 5.03(4) (service at place of residence) of a document by a sheriff or sheriff’s officer may be proved by a certificate of service in Form 8.

Solicitor’s of Record Admission or Acceptance
  • (3) A solicitor of record’s written admission or acceptance of service is sufficient proof of service and need not be verified by affidavit.

Document Exchange
  • (4) Service of a document under paragraph 5.05(1)(c) (document exchange) may be proved by the date stamp on the document or a copy of it.

Electronic Service
  • (5) Service of a document under subparagraph 5.01(5)(b)(iii) or paragraph 5.05(1)(e) may be proved by a certificate of service of the person who served the document stating that he or she:

    • (a) has served the document by emailing a copy in accordance with subparagraph 5.01(5)(b)(iii) or subrule 5.05(4) and has received an acceptance of service, with the date and time of the acceptance;

    • (b) has sworn an affidavit of service containing the particulars set out in the certificate of service;

    • (c) has kept the affidavit of service; and

    • (d) will produce, at the request of the court or a party, the affidavit of service.

  • SI/2014-5, ss. 5, 33(E)

Rule 6 Applications

Application of the Rule

  •  (1) Where the Criminal Code or other federal enactment to which the procedural provisions of the Criminal Code apply, authorizes, permits or requires that an application or motion be made to or an order or determination made by a judge of or presiding in the superior court of criminal jurisdiction, or a judge as defined in s. 552 of the Criminal Code, other than a judge presiding at trial upon an indictment, the application shall be commenced by a notice of application in Form 1.

  • (2) Rules 6.01 to 6.11 apply to all proceedings commenced by a notice of application, except where these rules expressly provide otherwise, or a judge of this court orders otherwise.

Applications -- To Whom to be Made

 Applications shall be made to a judge of the court in the county, district or region where the criminal proceedings to which the application relates are being or are to be heard.

Content of Notice

 Every notice of application in Form 1 shall state:

  • (a) the place and date of hearing in accordance with rule 6.02 and any other applicable rule;

  • (b) the precise relief sought;

  • (c) the grounds to be argued, including a reference to any statutory provision or rule to be relied upon;

  • (d) the documentary, affidavit and other evidence to be used at the hearing of the application; and,

  • (e) whether any order is required abridging or extending the time for service or filing of the notice of application or supporting materials required under these rules.

Service of Notice

General Rule re Service
  •  (1) The notice of application shall be served on all parties in accordance with rule 5 and, where there is uncertainty whether anyone else should be served, the applicant may make a motion without notice to a judge for an order for directions.

Filing Proof of Service
  • (2) The notice of application in Form 1 and any other supporting materials required by the Code, other statutes or these rules, or ordered by a judge of the court, 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 date of the hearing of the application, unless otherwise ordered by a judge of the court, or unless subrule 20.04(1) applies.

  • SI/2014-5, s. 6(E)

Material for Use on Applications

Application Record
  •  (1) Unless otherwise ordered by a judge of the court or otherwise provided by these rules, an applicant shall serve on every other party and file an application record in accordance with subrule (2), not later than thirty (30) days before the date of the hearing of the application.

  • (2) The applicant’s application record shall contain, in consecutively numbered pages arranged in the following order:

    • (a) a table of contents describing each document, including each exhibit, by its nature and date and, in the case of an exhibit, by exhibit number or letter;

    • (b) a copy of the notice of application;

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

    • (d) a copy of all affidavits and other material served by the applicant and any party other than the respondent for use on the application;

    • (e) a list of all relevant transcripts of evidence in chronological order, but not necessarily the transcripts themselves; and

    • (f) a copy of any other material in the court file that is necessary for the hearing of the application.

Respondent’s Application Record
  • (3) Where the respondent seeks to rely on material other than that filed by the applicant, the respondent shall serve on every other party and file a respondent’s application record in accordance with subrule 6.05(4), not later than ten (10) days before the date of the hearing of the application.

  • (4) The respondent’s application record shall contain, in consecutively numbered pages arranged in the following order:

    • (a) a table of contents describing each document, including each exhibit, by its nature and date and in the case of an exhibit, by exhibit number or letter; and

    • (b) a copy of any material to be used by the respondent on the application and not included in the application record,

    and the respondent’s application record shall be filed, with proof of service, in the court office where the application is to be heard, not later than ten (10) days before the date of the hearing of the application.

Documents May be Filed as Part of Record
  • (5) Any documents served by a party for use on an application may be filed, together with proof of service, as part of the party’s application record and need not be filed separately if the record is filed within the time prescribed for filing the notice or other material.

Transcript of Evidence
  • (6) A party who intends to refer to a transcript of evidence at the hearing of an application shall file a copy of the transcript as provided by rule 4.08.

Books of Authorities
  • (7) Unless otherwise ordered by a judge of the court, books of authorities in accordance with rule 32 are required and shall be served and filed within the time limits described in subrules (1) and (3).

Factums
  • (8) Unless otherwise ordered by a judge of the court, or required by these rules, factums are not required for applications made under this rule.

  • (9) Where a judge orders or these rules require that factums be served and filed on an application, the factums shall comply with rule 33 and be served and filed within the time limits described in subrules (1) and (3), unless otherwise ordered by a judge of the court.

  • SI/2014-5, ss. 7, 32(E)

The Hearing of Applications

Place of Hearing
  •  (1) Unless otherwise ordered by a judge of the court, an application to which this rule applies shall be heard and determined by a judge of the court in the county or district in which the trial or other proceedings to which the application relates are being or are to be held.

Date of Hearing
  • (2) Unless otherwise ordered by a judge of the court, applications shall be heard on a date and at a time fixed by the Registrar on notice to all parties or their solicitors of record.

Evidence on Applications

General Rule: Evidence by Affidavit
  •  (1) Evidence on an application may be given by affidavit in Form 4 and in accordance with rule 4.06, unless the Criminal Code or other applicable statute provides, or a judge of the court orders otherwise in accordance with rule 2.01.

Service and Filing of Affidavit
  • (2) Where 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 with proof of service in the court office in the place where the motion or application is to be heard in accordance with subrule 6.05(1).

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

Cross-Examination on Affidavit
  • (4) Subject to the Code or any other applicable statute or rule of law, an affiant may be cross-examined on his or her affidavit at the office of a special examiner in sufficient time in advance of the return date of the application to permit a transcript of the cross-examination to be served on all parties and filed within the time limits described in subrules 6.05(1) and (3), unless otherwise ordered by a judge of the court.

  • SI/2014-5, ss. 8, 32(E)

Evidence by Examination of Witnesses

 Subject to the Criminal Code or any other applicable statute or rule of law, a witness may be examined or cross-examined upon 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.

Use of Agreed Statements of Fact

 A judge, before or upon the hearing of the application, may dispense with the filing of any transcript(s) or affidavit(s) required in these rules and act upon a statement of facts agreed upon by the prosecutor and the accused person or his solicitor of record.

Abandonment of Applications

Notice of Abandonment
  •  (1) Where an applicant desires to abandon his or her application, he or she shall serve, in any manner provided by rule 5, a notice of abandonment in Form 9, signed by the solicitor of record in the application, or by the applicant (in which case the signature shall be verified by affidavit, solemn declaration or witnessed by a solicitor or an officer of the institution in which the applicant is confined).

Dismissal as Abandoned
  • (2) A judge of the court in chambers may thereupon dismiss the application as an abandoned application, without the attendance of the solicitor of record or the applicant.

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 2.01.

Dismissal on Reference or Application

Notice by the Registrar
  •  (1) Where it appears to the Registrar that a notice of application does not show a substantial ground for the order sought, the Registrar may refer the matter to a judge of the court for summary determination, and, where a matter is referred under this rule, a judge may, if he or she considers that the application is frivolous or vexatious and can be determined without a full hearing, dismiss the application summarily, without calling upon any person to appear for the respondent.

Application by Respondent
  • (2) Upon application by the respondent that a notice of application does not show a substantial ground for the order sought, a judge of the court may, if he or she considers that the matter is frivolous or vexatious and can be determined without a full hearing, dismiss the application summarily and cause the applicant to be advised accordingly.

 

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