Pre-trial applications on criminal proceedings

Question 1

what is the purpose of pre-trial applications/motions?

Answer 1

To set the parameters of the the trial

Question 2

Rule 2.4 of the Criminal Rules of the Ontario Court of Justice requires that an application be heard at least

Answer 2

60 days before trial

Question 3

Who bears the onus in establishing motions?

Answer 3

The applicant bears the onus of establishing, on a balance of probabilities, that the motion should be granted

Question 4

The OCJ Rules came into effect in

Answer 4

2012 and apply to all criminal proceedings in the Ontario Court of Justice

Question 5

Rule 2 of the OCJ deals with

Answer 5

applications (Form 1) and responses (Form 2)

Question 6

Applications (Form 1) must contain

Answer 6

• a concise statement of the subject of the application
• a statement of the grounds to be argued
• a detailed statement of the factual basis for the application

Question 7

Responses (Form 2) must contain:

Answer 7

• a concise statement of the party’s reasons for responding
• a response to the applicant’s grounds
• a detailed statement of the factual basis for the party’s position

Question 8

An application in Form 1 is to be served and filed with proof of service at least

Answer 8

30 days before the hearing of the application

Question 9

A response in Form 2 is to be served and filed with proof of service at least

Answer 9

15 days before the hearing of the application

Question 10

trial applications shall be heard

Answer 10

at the start of the trial (OCJ Rules)

Question 11

third party applications shall be heard

Answer 11

at least 30 days before trial, unless the court orders otherwise

Question 12

documents must be filed

Answer 12

electronically unless otherwise directed

Question 13

for proceedings involving sexual offences, the Code provides that an application for production of third party records shall be served at least

Answer 13

60 days before the hearing

Question 14

What does Section 605 enable?

Answer 14

Enables the defence to apply to a judge of the OCJ for the release of any exhibit for the purpose of examination or testingS

Question 15

A section 605 order will be granted where

Answer 15

there is an air of reality to the contention that examination of the exhibit is likely to support a defence available to the accused

Question 16

a notice of an application for adjournment must be filed at least

Answer 16

30 days before the date on which the application is to be heard. Unless ordered otherwise, the application must be heard at least 60 days before the date fixed for trial

Question 17

An application for removal of rep on record must be served on the opposing party at least

Answer 17

30 days before the date of the hearing of the application. Unless the court orders otherwise, the application must be heard at least 60 days before the trial

Question 18

a voir dire is necessary where

Answer 18

evidence must be called to resolve a preliminary question of fact before the judge can make a ruling

Question 19

What does voir dire mean?

Answer 19

a trial within a trial

Question 20

What can an accused challenge by means of a constitutional application?

Answer 20

• a legislative enactment in whole or part, on the basis that it is inconcistent with the Charter in either purpose or effect
• a procedural or evidentiary rule on the basis that it infringes a guaranteed Charter right
• the conduct of individuals who are agents of the state for violating the accused’s Charter rights

Question 21

Who has jurisdiction to grant a constitutional remedy?

Answer 21

Only a court that has competent jurisdiction over the person, the subject matter, and the remedy being souht.

Generally the trial court, but in exceptional circumstances, the Superior Court of Justice

Question 22

The Superior Court of Justice has inherent jurisdiction to grant

Answer 22

pre-trial relief

Question 23

Who bears the burden of proving a Charter violation?

Answer 23

The applicant bears the onus of establishing a Charter breach on a balance of probabilities, and must provide an evidentiary foundation in order to support the allegation of a constitutional violation

Question 24

how can one make the claim that legislation is invalid?

Answer 24

Through Section 52(1) of the Constitution Act, which states:

” any law that is inconcistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect

Question 25

An application claiming that legislation is unconstitutional includes:

Answer 25

• the grounds to be argued
• the constitutional issues to be raised
• the constitutional principles to be relied upon
• a list of evidence to be tendered at the hearing
• generally, an affidavit from the applicant, a factum, and case law to be relief upon

Question 26

Notice of a section 52(1) application must be served

Answer 26

no less than 30 days before the application is to be heard

Question 27

Pursuant to section 109 of the CJA, notice to the provincial AG and federal AG of a section 52(1) application must be served

Answer 27

at least 15 days before the day on which the question is to be argued

Question 28

If an applicant is successful in establishing that the legislation contravenes the Charter, the onus will

Answer 28

shift to the Crown to prove that the violation constitutes a reasonable limitation on the applicant’s right or freedom, per section 1 of the Charter

Question 29

which courts do not have the constitutional authority to declare a law of no force and effect?

Answer 29

statutory courts, including the Ontario Court of Justice. however, where a law is found to be unconstitutional by the OCJ, the judge will treat it as such for the purpose of the matter before it (R v Albashir)

Question 30

Where are Charter remedies found?

Answer 30

Section 24(1) of the Charter, which entitles the accused to seek a remedy that is appropriate and just in the circumstances

Question 31

Under section 24(1), judges are permitted to use any remedy available

Answer 31

in criminal proceedings, but not those available through civil proceedings

Question 32

What is the process of filing for a constitutional remedy under Charter section 24(1)?

Answer 32

File an application in Form 1 and file supporting materials including an affidavit, evidence, factum/statement of legal issues, case law to be relied upon.

Question 33

A notice of a constitutional question must be sent to the AGs of Ontario and Canada no later than

Answer 33

15 days before the hearing where a section 24(1) remedy is sought in relation to an act or omission of the government

Question 34

What remedy is found in Charter section 24(2)?

Answer 34

The remedy of exclusion of evidence

Question 35

Charter section 24(2) states that

Answer 35

evidence that is obtained unconstitutionally will be excluded if its admission would bring the administration of justice into disrepute

Question 36

When considering whether a person’s section 11(b) right to be tried within a reasonable time has been violated, how is the time period calculated?

Answer 36

from the date the information was sworn to the estimated date for completion of trial.

The SCC in R v Jordan set a ceiling beyond which a delay becomes presumptively unreasonable

Question 37

What is the ceiling for presumptively unreasonable delays, set out in R v Jordan?

Answer 37

18 months for cases tried in provincial courts

30 months for cases tried in superiod court or provincial court after a prelim inquiry

Question 38

When deciding whether section 11(b) has been infringed, the trial judge is required to take the following steps

Answer 38

• calculate the total delay
• subtract defence delay from the total delay
• compare the net delay to the presumptive ceiling

Question 39

to rebut the presumption of an unreasonable delay, the Crown must

Answer 39

establish the presence of an exceptional circumstance.