Rule 5 – Applications (continued)
Abandonment of Application
5.07 Where an applicant desires to abandon the Application, the applicant shall serve, in any manner provided by Rule 4, a Notice of Abandonment in Form 5 signed by counsel in the Application or by the applicant, and the Court may thereupon dismiss the Application as abandoned, without the attendance of counsel or the applicant.
Dismissal for Failure to Appear
5.08 An applicant who fails to appear at the hearing of an Application shall be deemed to have wholly abandoned the Application.
Application at Trial
5.09 Nothing in this Rule shall be interpreted as derogating from the right of a party to make an Application at any point in the trial; but the failure to give timely notice for such an Application may be taken into account by the judge in determining in all the circumstances
(a) whether to hear the Application; or
(b) whether to hear the Application forthwith; or
(c) whether to adjourn the trial to hear the Application; and/or
(d) on what terms the judge will hear the Application.
Rule 6 - Pre-Trial Conference
Under subsection 625.1(1) of the Criminal Code
6.01 (1) Where an accused is to be tried by a Judge without a jury and it appears that the interests of justice would be served by the holding of a pre-trial conference, any of the parties to the proceeding may apply, or the Court on its own may order, that a pre-trial conference be held in order to facilitate discussion of any or all issues relating to that proceeding.
Under subsection 625.1(2) of the Criminal Code
6.01(2) Where an accused is to be tried by a court composed of a judge and jury, a pre-trial conference shall be held in order to facilitate discussion of any or all issues relating to that proceeding.
Pre-trial Conference Submission
6.02 (1) A Pre-trial Conference Submission (Form 6) shall be completed by the parties represented by counsel, exchanged between counsel, and filed in the Clerk’s office at least 5 days in advance of the conference.
6.02(2) An accused not represented by counsel is not required to file a Pre-trial Conference Submission.
Nature of the Pre-trial Conference
6.03(2) In addition to the topics identified in Form 6 (Pre-trial Conference Submission), a judge conducting a pre-trial conference may inquire as to:
(a) the extent of disclosure made by the prosecutor and any initial or further request therefor by an accused or counsel for an accused;
(b) the nature and particulars of any Applications to be made at the outset of the proceedings including any
(i) Application to contest the laying of the indictment or any count thereof,
(ii) Application to stay or otherwise determine the proceedings prior to plea or t he introduction of evidence,
(iii) Application to challenge the sufficiency of the indictment, to order particulars or to amend the indictment or any count thereof,
(iv) Application to sever the trial of any count(s) or accused from the trial(s) of any other accused or count,
(v) Application concerning the special pleas of autrefois acquit, autrefois convict or pardon,
(vi) Application to determine the fitness of an accused to stand trial;
(c) the simplification of such issues as remain to be contested at the proceedings;
(d) the possibility of obtaining admissions and agreements so as to facilitate an expeditious, fair and just determination of the proceedings;
(e) the estimated duration of the proceedings;
(f) the advisability of fixing a date for the commencement of the proceedings; and
(g) any other matter that may assist in promoting a fair, just and expeditious proceeding.
Other Pre-trial Conferences
6.04 Nothing in these Rules shall be construed or interpreted so as to preclude a judge from conducting additional pre-trial conferences.
6.05 This Pre-trial Conference Rule replaces the Rule of the Court of Queen’s Bench of New Brunswick Respecting Pre-Trial Conferences Under Subsection 553.1(2) of the Criminal Code of Canada adopted by a majority of the judges of the Court of Queen’s Bench of New Brunswick on March 17, 1986, Registration SI/86-78, and published in the Canada Gazette, Part II, Vol. 120, No. 12.
Rule 7 – Status Hearing
7.01 (1) Where a matter has been set down for trial and it appears to any of the parties to the proceeding that there is a reasonable likelihood that the matter will not proceed on the date scheduled, owing to a lack of preparation or failure on the part of any of the parties to take steps to ensure that the matter proceeds in a timely fashion on the date(s) set or for any other reason, that party shall request the Clerk’s office to schedule a status hearing.
7.01(2) A judge may at any time direct the Clerk’s office to schedule a status hearing.
7.01(3) At a status hearing the judge shall hear the parties on the issue of whether the scheduled dates for the trial of the matter are reasonably likely to be met by the parties and upon conclusion of the hearing the judge shall either confirm the date(s) set for trial or adjourn the trial and/or give directions.
Rule 8 – Court Attendance
Procuring Attendance of Prisoners
8.01(2) Where the person who is confined is the accused, the Application shall be made by the prosecutor.
8.01(3) Where the person who is confined is a witness, the Application shall be made by the party that plans to call that witness.
8.01(4) The Application shall be ex parte and made as soon as reasonably practicable and sufficiently before attendance is required to ensure that no adjournment of the proceeding will be required for attendance and to provide adequate notice to the authorities holding and transporting the person who is confined and, in any event, except with leave of the Court, an Application shall be made not less than four days before the day attendance is required.
Obtaining a Subpoena
For a Person within the Province
8.02(2) Under subsections 698(1) and 699(1) of the Criminal Code, a subpoena may be issued by the Clerk under the seal of the Court upon the applicant filing with the Clerk’s office a statement signed by counsel for the applicant or by the applicant personally if not represented by counsel, setting out the name and address of the proposed witness and a summary of the materiality of the evidence likely to be given by the proposed witness.
For a Person outside the Province
8.02(4) The Application shall be by Notice of Application in Form 1 and shall be accompanied by an affidavit of the applicant or on behalf of the applicant deposing:
(a) as to the name and address of the proposed witness;
(b) as to the materiality of the evidence likely to be given by the proposed witness; and
(c) as to the necessity of procuring the personal attendance of the witness rather than obtaining that proposed witness’s evidence by other means, including by video-conference or by agreed statement.
Counsel of Record
8.03 (1) Counsel who assume the representation of an accused who was either unrepresented or represented by another counsel shall immediately file a notice to that effect with the Clerk’s office and serve a copy of the notice on the prosecutor in accordance with Rule 4.
8.03(2) Counsel of record for an accused shall remain counsel of record for his or her client with all the responsibilities pertaining thereto, until an order removing counsel from the record has been made by a judge or a new counsel has filed a notice in accordance with Rule 8.03 (1).
8.03(3) An Application to be removed as counsel of record shall be by Notice of Application in Form 1 and shall be governed by these Criminal Procedure Rules of the Court of Queen’s Bench.
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