Vol. 148, No. 1 — January 1, 2014

Registration

SOR/2013-249 December 20, 2013

CRIMINAL CODE

Ontario Review of Parole Ineligibility Rules (Rule 50)

The Chief Justice of the Superior Court of Justice (Ontario), pursuant to subsection 745.64(1) (see footnote a) of the Criminal Code (see footnote b), makes the annexed Ontario Review of Parole Ineligibility Rules (Rule 50).

December 17, 2013

H. J. SMITH
Chief Justice

ONTARIO REVIEW OF PAROLE INELIGIBILITY RULES (RULE 50)

INTERPRETATION

Interpretation

50.01 The following definitions apply in these Rules.

“applicant”
« requérant »

“applicant” means a person who makes an application and includes counsel acting for that person.

“application”
« demande »

“application” means an application for the reduction in the number of years of imprisonment without eligibility for parole made under subsection 745.6(1) of the Code.

“Attorney General”
« procureur général »

“Attorney General” means the Attorney General of Ontario and includes counsel acting for the Attorney General.

“case management hearing”
« audience sur la gestion de l’instance »

“case management hearing” means a hearing held before the jury is empanelled to hear the application.

“Chief Justice”
« juge en chef »

“Chief Justice” means the Chief Justice of the Superior Court of Justice (Ontario).

“Code”
« Code »

“Code” means the Criminal Code.

“Commissioner”
« commissaire »

“Commissioner” means the Commissioner as defined in section 2 of the Corrections and Conditional Release Act.

“institutional head”
« version anglaise seulement »

“institutional head” has the same meaning as in section 2 of the Corrections and Conditional Release Act.

“judge”
« juge »

“judge” means a judge of the Superior Court of Justice (Ontario).

“local registrar”
« greffier local »

“local registrar” means the registrar of the Superior Court of Justice (Ontario) in the jurisdiction in which the application is proceeding.

“presiding judge”
« juge qui préside »

“presiding judge” means the judge who is designated by the Chief Justice under subsection 745.61(5) of the Code to empanel a jury.

APPLICATION

FILING

Contents of application

50.02 (1) The application shall be in Form 20 of the schedule and shall include the following information:

• (a) the applicant’s full name and date of birth;
• (b) the name and address of the institution where the applicant is currently detained;
• (c) the offence for which the applicant was convicted, the date of the offence, the date that the applicant was convicted of the offence, the place of trial where the applicant was convicted of the offence, the sentence and the date of sentencing;
• (d) if the applicant was convicted of more than one murder, the reasons why subsection 745.6(2) of the Code does not apply to the application;
• (e) the number of years of imprisonment without eligibility for parole imposed upon the applicant;
• (f) the number of years of imprisonment served by the applicant on the date of the application;
• (g) all relevant information, including judicial orders and reasons, pertaining to any previous application made by the applicant;
• (h) a statement specifying how the applicant complies with the time limits set out in subsections 745.6(2.1) to (2.7) of the Code as well as any reasons for any extension of the time limits being sought;
• (i) the name and address of each institution in which the applicant has been detained since the day of the arrest for the offence for which the applicant was convicted, as well as the date of entry and transfer into each institution;
• (j) the applicant’s criminal record;
• (k) if they are reported, the reasons for trial judgment, sentence and any appeal, or the citations for the trial judgment, sentence and any appeal. If reasons are not reported, a summary of the offence for which the applicant was convicted;
• (l) all grounds relied upon in support of the application and an outline of the evidence the applicant intends to seek to introduce at the hearing before the jury, stated precisely and concisely;
• (m) a statement of the relief sought; and
• (n) the name and address of counsel for the applicant, if represented, and the applicant’s address for service.
  

Affidavit

(2) The application shall be accompanied by an affidavit of the applicant in Form 21 of the schedule.

Other written evidence

(3) The application may include any other written evidence, including any report made available to the applicant by Correctional Service Canada or other correctional authorities.

SERVICE AND FILING OF NOTICE OF APPLICATION

Service to Chief Justice

50.03 (1) The applicant shall serve an application on the Chief Justice at Osgoode Hall, 130 Queen Street West, Toronto, Ontario M5H 2N5.

Service to other persons

(2) The applicant shall also serve a copy of the application on

• (a) the Crown Attorney in the location where the applicant’s trial took place, who shall receive it on behalf of the Attorney General;
• (b) the Commissioner, at Correctional Service of Canada, 340 Laurier Avenue West, 9B-18, Ottawa, Ontario K1A 0P9; and
• (c) the institutional head of the penitentiary where the applicant is detained.

Manner of service

(3) The application shall be served by registered mail, and it is deemed to be effective on the fifth day after the day on which it is mailed.

Proof of service

(4) Proof of service of an application may be established by the person who effected the service by mailing a copy of Form 7 (Affidavit of Service) in the schedule to the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) to the Chief Justice.

JUDICIAL SCREENING UNDER SECTION 745.61 OF THE CODE

Designation of judge

50.04 (1) On receipt of an application, the Chief Justice shall notify the following persons of his or her determination as to whether he or she will conduct a judicial screening under subsection 745.61(1) of the Code or designate a judge in writing to do so:

• (a) the applicant;
• (b) the Crown Attorney in the location where the applicant’s trial took place, who shall receive notice on behalf of the Attorney General;
• (c) the Commissioner at Correctional Service of Canada, 340 Laurier Avenue West, 9B-18, Ottawa, Ontario K1A 0P9; and
• (d) the institutional head of the penitentiary where the applicant is detained.
  

Eligibility

(2) The Chief Justice or the judge conducting the judicial screening shall determine whether the applicant is eligible to apply for judicial review, in accordance with the criteria  set out in section 745.6 of the Code.

Submission of written evidence by Attorney General

(3) The Attorney General may, within 120 days after the day on which the notification referred to in subrule (1) is received, submit any written evidence under paragraph 745.61(1)(c) of the Code to be considered at the judicial screening.

Report

(4) The material of the Attorney General may include any report made available to the Attorney General by Correctional Service of Canada or any other correctional authorities.

Service of evidence

(5) The material referred to in subrules (3) and (4) shall be served on the following persons, in accordance with subrule 50.03(3):

• (a) the Chief Justice or the judge;
• (b) the applicant;
• (c) the Commissioner at Correctional Service of Canada, 340 Laurier Avenue West, 9B-18, Ottawa, Ontario K1A 0P9; and
• (d) the institutional head of the penitentiary where the applicant is detained.

Deadline for report

(6) Correctional Service of Canada or other correctional authorities may, within 120 days after the day on which the notification referred to in subrule (1) is received, submit any report under paragraph 745.61(1)(b) of the Code to be considered at the judicial screening.

Service of report

(7) The report referred to in subrule (6) shall be served, in accordance with subrule 50.03(3), on the following persons:

• (a) the Chief Justice or the judge;
• (b) the applicant; and
• (c) the Crown Attorney in the location where the applicant’s trial took place, who shall receive it on behalf of the Attorney General.
  

Judicial screening to be on the basis of written material unless otherwise ordered

(8) Unless otherwise ordered by the Chief Justice or the judge conducting the judicial screening, the decision on the judicial screening of the application will be based entirely on the written material submitted by the applicant, the Attorney General and Correctional Service Canada or other correctional authorities.

Granting judicial screening application

(9) If the Chief Justice or the judge determines that the applicant has established his or her eligibility to apply for judicial review and that there is, in accordance with subsection 745.61(2) of the Code, a substantial likelihood that the application will succeed, the Chief Justice or the judge conducting the judicial screening shall grant the application for judicial screening and may issue reasons for his or her decision.

Dismissal of application

(10) If the Chief Justice or the judge determines that the applicant has not established his or her eligibility to apply for judicial review or that there is, in accordance with subsection 745.61(2) of the Code, no substantial likelihood that the application will succeed, the Chief Justice or the judge conducting the judicial screening shall dismiss the application with reasons and may render a decision under subsection 745.61(3) of the Code.

Notification of decision

(11) The Chief Justice or the judge shall notify the following persons of his or her decision to grant or dismiss the application:

• (a) the applicant;
• (b) the Crown Attorney in the location where the applicant’s trial took place, who shall receive it on behalf of the Attorney General;
• (c) the Commissioner at Correctional Service of Canada, 340 Laurier Avenue West, 9B-18, Ottawa, Ontario K1A 0P9; and
• (d) the institutional head of the penitentiary where the applicant is in custody.
  

Notification to Chief Justice

(12) If the decision has been made by a judge conducting the judicial screening, he or she shall notify the Chief Justice of his or her decision.

Order for parole eligibility report

(13) If the Chief Justice or the judge grants the application for judicial screening, he or she shall make an order that a parole eligibility report be prepared in respect of the applicant, containing the information set out in subrule 50.07(2) and having regard to the criteria referred to in subsection 745.63(1) of the Code.

Designation of presiding judge

50.05 (1) If the Chief Justice grants the application for judicial screening in accordance with subrule 50.04(9), the Chief Justice shall designate, in writing, a presiding judge who will empanel a jury to hear the application under subsection 745.61(5) of the Code.

Presiding judge

(2) If the judge grants the application for judicial screening in accordance with subrule 50.04(9), he or she shall be designated by the Chief Justice as the presiding judge who will empanel a jury to hear the application under subsection 745.61(5) of the Code.

Assignment of another judge

(3) The Chief Justice may decide to assign another presiding judge to empanel a jury under subsection 745.61(5) of the Code to hear the application. The Chief Justice shall provide notice in writing of the assignment to the applicant and the Attorney General.

Place of hearing

(4) The hearing of the application shall be held in the jurisdiction in which the applicant’s trial was held, unless the Chief Justice or the presiding judge orders otherwise.

CASE MANAGEMENT HEARINGS

Case Management Hearing

50.06 (1) The presiding judge shall hold a case management hearing or hearings in connection with the application, and the local registrar shall give written notice of the date and time of the hearing to the applicant and the Attorney General.

Place of hearing

(2) A case management hearing shall be held in the jurisdiction in which the jury will be empanelled, unless the presiding judge orders otherwise.

Applicant’s obligation to attend

(3) If evidentiary or other rulings will be made at a case management hearing, the applicant shall attend the hearing either in person or, if the necessary facilities are available and the applicant is able to communicate privately with his or her counsel during the case management hearing, by video conference.

Optional attendance

(4) If evidentiary or other rulings will not be made at a case management hearing, the applicant is not required to attend the hearing but may, at the discretion of the presiding judge, attend the hearing in person or by video conference in accordance with subrule (3).

Information to be provided

(5) At a case management hearing, the applicant and the Attorney General shall inform the presiding judge of

• (a) any evidence that they intend to present at the hearing of the application and the manner in which they intend to present it; and
• (b) the names of witnesses, if any, to be called by the parties.

Powers of presiding judge

(6) At a case management hearing, the presiding judge may

• (a) determine the date and place for the hearing of the application;
• (b) permit the proof of facts by affidavit;
• (c) make rulings regarding the admissibility of any evidence, including on any information that a victim may wish to provide at the hearing, having regard to paragraph 745.63(1)(d) and subsection 745.63(1.1) of the Code;
• (d) determine any matter or give any directions necessary that may promote a fair and expeditious hearing of the application; and
• (e) adjourn the hearing, if the presiding judge considers it appropriate, and resume the hearing at a time and place determined by the presiding judge.

Deponents’ attendance at hearing

(7) If the presiding judge makes an order under paragraph (6)(b), the judge may require the attendance of the deponent at a case management hearing or at the hearing of the application, for the purpose of cross-examination on the affidavit.

PAROLE ELIGIBILITY REPORT

Adjournment

50.07 (1) The presiding judge may adjourn a case management hearing until he or she receives the parole eligibility report ordered by the Chief Justice or by the judge conducting the judicial screening under subrule 50.04(13).

Author and contents of parole eligibility report

(2) The parole eligibility report shall be prepared by a person designated by the institutional head of the penitentiary where the applicant is detained and shall contain

• (a) a summary of the applicant’s social and family background;
• (b) a summary of the applicant’s classification and discipline evaluations;
• (c) a summary of the regular reports on the applicant’s conduct;
• (d) a summary of any psychological and psychiatric assessments that have been made of the applicant;
• (e) any other information relevant to a complete description of the applicant’s character and conduct; and
• (f) any other information relevant to the issue of the applicant’s parole eligibility.

Filing and delivery of parole eligibility report

(3) Upon completion, the parole eligibility report shall be filed without delay with the local registrar at the place where the management hearing is held, and the local registrar shall deliver a copy of the report to the presiding judge, the applicant and the Attorney General.

Resumption of case management hearing

(4) On receipt of the parole eligibility report, the presiding judge may set a date for the resumption of the case management hearing which shall be at least 30 days after the day on which he or she receives the parole eligibility report and direct the local registrar to notify the applicant and the Attorney General of the date set.

Dispute of parole eligibility report

(5) If the applicant or the Attorney General disputes any part of the parole eligibility report, they may require that the author of the report attend at a case management hearing for the purpose of cross-examination.

Determination by presiding judge

(6) The presiding judge may determine the admissibility of any part of the parole eligibility report.

HEARING OF APPLICATIONS

Disclosure

50.08 (1) The applicant and the Attorney General shall ensure that full disclosure of all documents has been made to the other party in accordance with any instructions given by the presiding judge.

Empaneling jury

(2) A jury referred to in subsection 745.61(5) of the Code shall be empanelled in accordance with Part XX of the Code.

Peremptory challenges

(3) The applicant and the Attorney General are entitled to the same number of peremptory challenges as they would be entitled to if the applicant were being tried for the offence for which he or she was convicted.

Challenges for cause

(4) The provisions of sections 638 and 639 of the Code with respect to challenges for cause apply to the jury selection with any modifications that the circumstances require.

Record of proceedings

(5) The hearing shall be recorded in the same manner as trials in the Superior Court of Justice (Ontario).

In-camera hearings

(6) On application by either party or if the presiding judge is of the opinion that it is necessary to do so in the maintenance of order or the proper administration of justice, the presiding judge may, on notice to the media, order that any part of a proceeding in relation to an application be held in camera or order a total or partial publication ban of any evidence presented at any such proceeding.

Conduct of hearing

(7) At the hearing of an application or during a case management hearing, the presiding judge may hold a voir dire on the admissibility of any proposed evidence, including the parole eligibility report.

Additional orders

(8) The presiding judge may, at any time, make any order or give any direction that he or she considers necessary in the interests of justice, including

• (a) an order setting time limits on the presentation of evidence, submissions and closing arguments; and
• (b) an order requiring that the applicant be brought before the court.

Application of section 527 of the Code

(9) If the presiding judge makes an order under paragraph 8(b), section 527 of the Code applies with any modifications that the circumstances require.

Evidence of the applicant

(10) Unless the presiding judge orders otherwise, at the hearing of an application, the applicant shall present evidence first and may, if the presiding judge permits, present rebuttal evidence after the evidence of the Attorney General is presented.

Evidence of Attorney General

(11) In presenting the evidence of the Attorney General, the Crown Attorney shall have regard to paragraph 745.63(1)(d) and subsection 745.63(1.1) of the Code.

Address to jury

(12) Unless the presiding judge orders otherwise, after all of the evidence has been presented, the applicant shall address the jury first.

Instructions by presiding judge

(13) After the address to the jury by the applicant and the Attorney General, the presiding judge shall give instructions to the jury on the applicable law and evidence.

COMING INTO FORCE

Registration date

50.09 These Rules come into force on the day on which they are registered and they shall apply to all applications, whether commenced before or after these rules come into force.

SCHEDULE
(Rule 50.02)

Form 20 /APPLICATION FOR REVIEW OF PAROLE INELIGIBILITY

COURT OF ONTARIO
(Superior Court of Justice)
((specify) Region)

BETWEEN:

HER MAJESTY THE QUEEN
— and —
(specify name of accused)

APPLICATION FOR REVIEW OF PAROLE INELIGIBILITY
(Criminal Code, s. 745.6(1))

(Ontario Review of Parole Ineligibility Rules (Rule 50), Subrule 50.02(1), Form 20)

Application for a reduction in the number of years of imprisonment without eligibility for parole, made under subsection 745.6(1) of the Criminal Code.

To the Honourable Chief Justice of the Superior Court of Justice:

• 1. I, (full name of the applicant), born on (applicant’s date of birth) and currently detained at (name and place of the institution), apply, under subsection 745.6(1) of the Criminal Code, for a reduction in the number of years of imprisonment during which I will not be eligible for parole with respect to the sentence imposed on me on (give date of sentencing) by (specify name of judge) at (specify place of trial).
• 2. The sentence referred to in paragraph 1 was imposed on me for (specify the offence for which the applicant was convicted, including the section of the Criminal Code, the date that the offence was committed and give the date of conviction. If the applicant has been convicted of more than one murder, specify why subsection 745.6(2) of the Criminal Code does not apply to the applicant).
• 3. The sentence imposed on me was (give a description of the sentence) and the number of years of imprisonment without eligibility for parole was set at (give number of years).
• 4. For the offence referred to in paragraph 2, I have been imprisoned for a period of (insert total amount of time served by the applicant under this sentence on the date of application). In accordance with section 746 of the Criminal Code, this period includes the time that I spent in custody between the day that I was arrested and taken into custody for the offence on (give date of arrest) and the day that the sentence was imposed on (give date of sentencing).
• 5. I have/have not (delete as appropriate) previously made an application for a reduction in the number of years of imprisonment without eligibility for parole (insert all relevant information about any previous application(s), including the date(s) of any application(s), the date(s) that the Chief Justice/a judge/a jury determined any previous application and the outcome of any previous application).
• 6. In order to comply with the statutory time limits in the Criminal Code, I am making this application in accordance with (insert the relevant subsection (745.6 (2.1) – (2.6)) under which the applicant is making this application and specify how the application complies with the time limit. If the applicant is seeking to extend the time limit for making this application, under subsection 745.6 (2.7) of the Criminal Code, specify the circumstances beyond the control of the applicant that has meant that she/he is unable to make an application within the 90-day time limit).
• 7. Since my arrest for the offence referred to in paragraph 2, I have been detained in the following institutions: (give a complete list of the names and places of each institution in which the applicant has been detained since the date of the arrest for the offence that is the subject of the application and specify the date of entry into each of those institutions).
• 8. My criminal record is as follows: (give a complete list of convictions and sentences and indicate the date of each).
• 9. In support of my application, I am relying on the following grounds: (specify all grounds relied upon in support of the application and an outline of the evidence the applicant would seek to introduce at the hearing before the jury, stated precisely and concisely, and the reduction in the number of years of imprisonment without eligibility for parole sought by the applicant. The applicant must include, if they are reported, the reasons for the trial judgment, sentence and any appeal, or the citations for the trial judgment, sentence and any appeal. If no reasons have been reported, the applicant should also provide a summary of the offence for which he or she was convicted).
• 10. The name and address of my counsel is (insert full name and address of counsel, if applicable) and my address for service is (insert complete mailing address).
• 11. I have completed an affidavit in support of my application (Form 21) and have attached that form to my application.

______________________
(Date of Application)

______________________
(Signature of Applicant)

Form 21 /AFFIDAVIT IN SUPPORT OF APPLICATION FOR REVIEW OF PAROLE INELIGIBILITY

COURT OF ONTARIO
(Superior Court of Justice)
((specify) Region)

BETWEEN:

HER MAJESTY THE QUEEN
— and —
(specify name of accused)

AFFIDAVIT IN SUPPORT OF APPLICATION FOR REVIEW OF PAROLE INELIGIBILITY
(Criminal Code, s. 745.6(1))

(Ontario Review of Parole Ineligibility Rules (Rule 50), Subrule 50.02(2), Form 21)

Application of (full name of the applicant) made under subsection 745.6(1) of the Criminal Code.

I, the undersigned, (full name of the applicant), currently detained at (name and place of the institution), in the Province of ________, make oath and say as follows:

1. I am the applicant.
2. The facts set out in the attached application are true.

________________________
(Date of Application)

________________________
(Signature of Applicant)

Sworn (or affirmed) before me on _________, 2____, at _____________________.

________________________________
Commissioner of Oaths

• Footnote a
  1996, c. 34, ss. 2(2)
• Footnote b
  R.S., c. C-46