Vol. 146, No. 9 — April 25, 2012

Registration

SI/2012-30 April 25, 2012

CRIMINAL CODE

Criminal Rules of the Ontario Court of Justice

On the recommendation of the undersigned, the Lieutenant Governor, by and with the advice and concurrence of the executive Council, orders that:

the appended document, being the Criminal Rules of the Ontario Court of Justice, made by the Ontario Court of Justice under the Criminal Code (Canada), be approved.

Recommended
JOHN GERRETSEN
Attorney General

Concurred
JOHN GERRETSEN
Chair of Cabinet

Approved and Ordered
April 4, 2012
DAVID C. ONLEY
Lieutenant Governor

The Ontario Court of Justice, pursuant to subsections 482(2) and 482.1(1) of the Criminal Code, hereby makes the annexed Criminal Rules of the Ontario Court of Justice.

March 22, 2012

THE HONOURABLE ANNEMARIE E. BONKALO
Chief Justice

CRIMINAL RULES OF THE ONTARIO COURT OF JUSTICE

RULE 1 — GENERAL

Fundamental objective

1.1 (1) The fundamental objective of these rules is to ensure that proceedings in the Ontario Court of Justice are dealt with justly and efficiently.

(2) Dealing with proceedings justly and efficiently includes

1. (a) dealing with the prosecution and the defence fairly;
   
   
2. (b) recognizing the rights of the accused;
   
   
3. (c) recognizing the interests of witnesses; and
   
   
4. (d) scheduling court time and deciding other matters in ways that take into account
   
   1. 
      (i) the gravity of the alleged offence,
      
      
   2. (ii) the complexity of what is in issue,
      
      
   3. (iii) the severity of the consequences for the accused and for others affected, and
      
      
   4. (iv) the requirements of other proceedings.
      

Duty of counsel, paralegals, agents and litigants

(3) In every proceeding, each counsel, paralegal, agent and litigant shall, while fulfilling all applicable professional obligations,

1. (a) act in accordance with the fundamental objective; and
   
   
2. (b) comply with
   
   1. 
      (i) these rules,
      
      
   2. (ii) practice directions, and
      
      
   3. (iii) orders made by the Court.
      

Duty of Court

(4) The Court shall take the fundamental objective into account when

1. (a) exercising any power under these rules; or
   
   
2. (b) applying or interpreting any rule or practice direction.
   

Scope of rules

1.2 These rules apply to all proceedings before the Court.

Definitions

1.3 In these rules,

“Charter”
« Charte »

“Charter” means the Charter of Rights and Freedoms;

“Code”
« Code »

“Code” means the Criminal Code;

“Court”
« tribunal »

“Court” means a judge of the Ontario Court of Justice, and includes a justice of the peace in a context where the Code allows a justice of the peace to act;

“proceeding”
« instance »

“proceeding” means a proceeding under the Code.

RULE 2 — APPLICATIONS

Application

2.1 (1) An application shall be commenced by serving an application in Form 1 on the opposing parties and any other affected parties and filing it with proof of service.

Contents of document

(2) The application in Form 1 shall include

1. (a) a concise statement of the subject of the application;
   
   
2. (b) a statement of the grounds to be argued; and
   
   
3. (c) a detailed statement of the factual basis for the application, specific to the individual proceeding.
   

Transcripts

(3) If determination of the application is likely to require a transcript, the applicant shall serve and file it with the application in Form 1.

Response

2.2 (1) A party responding to an application shall serve a response in Form 2 on the applicant and any other affected parties and file it with proof of service.

Contents of document

(2) The response in Form 2 shall include

1. (a) a concise statement of the party’s reasons for responding to the application;
   
   
2. (b) a response to the applicant’s grounds; and
   

(c) a detailed statement of the factual basis for the party’s position, specific to the individual proceeding.

Additional material

2.3 (1) If the application in Form 1 complies with subrules 2.1(2) and (3), no additional material need be served and filed unless required by an order of a pre-trial or trial judge.

(2) Applicants and responding parties may serve and file any additional factual and legal material that they consider appropriate and helpful to assist the Court, including

1. (a) a brief statement of the legal argument to be made;
   
   
2. (b) one or more affidavits;
   
   
3. (c) case law to be relied upon, other than well-known precedents; and
   
   
4. (d) an agreed statement of facts.
   

Time for pre-trial applications

2.4 (1) A pre-trial application shall be heard at least 60 days before trial, unless the Court orders otherwise.

(2) For the purposes of subrule (1), pre-trial applications include

1. (a) procedural applications, such as applications for adjournments or withdrawal of counsel of record;
   
   
2. (b) preparatory applications for matters that are necessary before proceeding to trial, such as disclosure, release of exhibits for testing or commission evidence;
   
   
3. (c) applications for severance and for particulars;
   
   
4. (d) applications for the appointment or removal of counsel; and
   
   
5. (e) applications for a stay of proceedings for unreasonable delay under paragraph 11(b) of the Charter.
   

(3) An application for a stay of proceedings for unreasonable delay under paragraph 11(b) of the Charter shall be brought before the assigned trial judge.

Time for trial applications

2.5 (1) A trial application shall be heard at the start of the trial or during the trial, unless the Court orders otherwise.

(2) For the purposes of subrule (1), trial applications include

1. (a) applications under the Charter, such as applications that
   
   1. 
      (i) challenge the constitutionality of legislation,
      
      
   2. (ii) seek a stay of proceedings, except for unreasonable delay under paragraph 11(b) of the Charter, or
      
      
   3. (iii) seek the exclusion of evidence;
      
      
2. (b) complex evidentiary applications, such as applications for the admission of
   
   
   1. (i) similar act evidence,
      
   2. (ii) evidence of a complainant’s prior sexual activity, or
      
      
   3. (iii) hearsay evidence; and
      
      
3. (c) applications for access to records held by persons who are not parties to the proceeding.
   

Time for other applications

2.6 An application to which neither rule 2.4 nor rule 2.5 applies, such as an application made by a witness or by the media, shall be heard at least 30 days before the trial, unless the Court orders otherwise.

Applications on consent

2.7 (1) Subject to subrule (2), an application in which all the parties are represented by counsel or by licensed paralegals may be dealt with on consent, without a hearing, if a party files a consent in Form 3.

(2) If the Court is of the opinion that the application requires a hearing, a hearing date shall be ordered.

(3) An application in which a party is not represented by counsel or by a licensed paralegal may be dealt with on consent if

1. (a) a party files a consent in Form 3;
   
   
2. (b) the self-represented party appears before the Court; and
   
   
3. (c) the Court is satisfied that the party understands the nature of the consent and the consequences of giving it.
   

RULE 3 — SERVICE

Times for service

3.1 (1) An application in Form 1 shall be served and filed with proof of service at least 30 days before the date of the hearing of the application.

(2) A response in Form 2 shall be served and filed with proof of service at least 15 days before the date of the hearing of the application.

Exceptions

(3) Despite subrules (1) and (2), the time periods set out in those subrules may be shortened or lengthened

1. (a) by a local practice direction;
   
   
2. (b) by an order of the Court; or
   
   
3. (c) with the consent of the parties, except as described in rule 3.2.
   

Application for adjournment or to be removed from record

3.2 On applications for adjournment and applications to be removed from the record, shortening the time periods set out in subrules 3.1(1) and (2) requires the approval of the Court, in addition to the consent of the parties.

Methods of service

3.3 (1) Service under these rules may be made in person, by fax or by email, and hard copies of the documents served shall be filed.

Electronic filing technology

(2) If electronic filing technology is available and a practice direction authorizes its use, the documents may be served electronically, filed electronically or both. When a document has been filed electronically, it is not necessary to file a hard copy, unless the Court orders otherwise.

RULE 4 — CASE MANAGEMENT

Hearing and trial management

4.1 When conducting a hearing or trial, the Court has the power to make any order or direction in relation to the conduct of the proceeding that would assist in ensuring that it is conducted in accordance with the fundamental objective set out in rule 1.1.

Judicial pre-trial conference

4.2 (1) In this rule, “pre-trial” means a judicial pre-trial conference.

(2) Before attending the pre-trial, it is desirable for the parties to

1. (a) meet in order to attempt to resolve issues; and
   
   
2. (b) review the file.
   

(3) At the pre-trial, it is required that the parties have authority to make decisions on

1. (a) disclosure;
   
   
2. (b) applications, including Charter applications, that the parties will bring at trial;
   
   
3. (c) the number of witnesses each party intends to call at the preliminary inquiry or at trial;
   
   
4. (d) any admissions the parties are willing to make;
   
   
5. (e) any legal issues that the parties anticipate may arise in the proceeding;
   
   
6. (f) an estimate of the time needed to complete the proceeding; and
   
   
7. (g) resolution of the matter, if appropriate.
   

Materials

(4) At least three days before the pre-trial, the prosecutor shall give the pre-trial judge a copy of a synopsis of the allegations, unless a local practice direction provides otherwise.

(5) If the defence gives the pre-trial judge additional material, it shall do so at least three days before the pre-trial, if possible.

Communications technology

(6) If the pre-trial judge agrees, the pre-trial may be held by telephone or by means of some other form of communications technology.

Judicial directions

(7) After hearing from the parties during the pre-trial, the pre-trial judge may take one or more of the following steps:

1. (a) confirm or amend the estimates of the time required to hear the proceeding;
   
   
2. (b) set timelines for the exchange of materials on applications to be heard, or for the completion of disclosure on matters to be set for trial or preliminary hearing;
   
   
3. (c) set times for the hearing of applications; and
   
   
4. (d) set a date for a further pre-trial, if required.
   

Record of pre-trial agreements and admissions

(8) At the completion of the pre-trial, any agreements or admissions may be signed or otherwise recorded, transcribed and attached to the information for the assistance of the trial judge.

Focus hearing, preliminary inquiry

4.3 (1) A proceeding that is to have a preliminary inquiry shall have a hearing under section 536.4 of the Code if the preliminary inquiry judge so directs.

(2) The hearing shall be attended by

1. (a) counsel who will be conducting the preliminary inquiry, or another counsel designated by him or her with authority to make binding decisions; and
   
   
2. (b) the accused, if he or she is self-represented.
   

Materials

(3) The party who requested the preliminary inquiry shall serve the following materials on the opposing parties, together with the statement of issues and witnesses required by section 536.3 of the Code, and file them with proof of service, at least three days before the hearing:

1. (a) a list of witnesses whom the parties seek to have testify in person at the preliminary inquiry and, for each witness named in the list,
   
   
   1. (i) a brief synopsis of the expected evidence,
      
      
   2. (ii) an explanation of why in-person testimony is necessary, and
      
      
   3. (iii) an estimate of the time required to examine or cross-examine the witness;
      
      
2. (b) a list of witnesses whom the parties propose to examine through a discovery process;
   
   
3. (c) a brief statement as to whether committal for trial is in issue, and on what basis; and
   
   
4. (d) a statement of admissions agreed upon between the parties.
   

Absence of agreement

(4) At the conclusion of the hearing, if the parties do not agree as to the witnesses to be called at the preliminary inquiry, either party may schedule a hearing in accordance with subsections 540(7), (8) and (9) of the Code.

Discovery, preliminary inquiry

4.4 (1) At any time before committal for trial, the evidence of a witness may be taken by means of a discovery process if the parties and the preliminary inquiry judge agree.

Official record

(2) Evidence taken under subrule (1) forms part of the official record of the preliminary inquiry.

Exception, vulnerable witness

(3) Subrule (1) does not apply to a witness who is

1. (a) less than 18 years old; or
   
   
2. (b) the complainant in a proceeding involving sexual or physical violence.
   

RULE 5 — PRACTICE DIRECTIONS, FORMS AND NON-COMPLIANCE

Power to issue practice directions

5.1 (1) The Chief Justice or his or her delegate may issue practice directions that are consistent with these rules.

(2) A practice direction may apply to the whole of Ontario, to one or more of the seven regions of Ontario designated by the Ontario Court of Justice or to one or more local offices within those regions.

(3) A practice direction does not come into effect before it is posted on the Ontario Courts website (www.ontariocourts.on.ca).

Forms

5.2 (1) The following forms, which are available on the Internet through www.ontariocourtforms.on.ca, shall be used where applicable and with such variations as the circumstances require:

Form 1 (Application)

Form 2 (Response)

Form 3 (Consent)

(2) The Chief Justice or his or her delegate may issue additional forms and require their use.

(3) A requirement to use an additional form does not come into effect before

1. (a) the form and the requirement are posted on the Ontario Courts website (www.ontariocourts.on.ca); and
   
   
2. (b) the form is available on the Internet through www.ontariocourtforms.on.ca.
   

Power of Court to excuse non-compliance

5.3 The Court may excuse non-compliance with any rule at any time to the extent necessary to ensure that the fundamental objective set out in rule 1.1 is met.

REPEAL AND COMING INTO FORCE

REPEAL

Repeal

6. The Rules of the Ontario Court of Justice in Criminal Proceedings (see footnote 1) are repealed.

COMING INTO FORCE

July 1, 2012

7. These rules come into force on July 1, 2012.

Footnote 1
SI/97-133