Pre-trial applications on criminal proceedings Flashcards
what is the purpose of pre-trial applications/motions?
To set the parameters of the the trial
Rule 2.4 of the Criminal Rules of the Ontario Court of Justice requires that an application be heard at least
60 days before trial
Who bears the onus in establishing motions?
The applicant bears the onus of establishing, on a balance of probabilities, that the motion should be granted
The OCJ Rules came into effect in
2012 and apply to all criminal proceedings in the Ontario Court of Justice
Rule 2 of the OCJ deals with
applications (Form 1) and responses (Form 2)
Applications (Form 1) must contain
- 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
Responses (Form 2) must contain:
- 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
An application in Form 1 is to be served and filed with proof of service at least
30 days before the hearing of the application
A response in Form 2 is to be served and filed with proof of service at least
15 days before the hearing of the application
trial applications shall be heard
at the start of the trial (OCJ Rules)
third party applications shall be heard
at least 30 days before trial, unless the court orders otherwise
documents must be filed
electronically unless otherwise directed
for proceedings involving sexual offences, the Code provides that an application for production of third party records shall be served at least
60 days before the hearing
What does Section 605 enable?
Enables the defence to apply to a judge of the OCJ for the release of any exhibit for the purpose of examination or testingS
A section 605 order will be granted where
there is an air of reality to the contention that examination of the exhibit is likely to support a defence available to the accused
a notice of an application for adjournment must be filed at least
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
An application for removal of rep on record must be served on the opposing party at least
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
a voir dire is necessary where
evidence must be called to resolve a preliminary question of fact before the judge can make a ruling
What does voir dire mean?
a trial within a trial
What can an accused challenge by means of a constitutional application?
- 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
Who has jurisdiction to grant a constitutional remedy?
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
The Superior Court of Justice has inherent jurisdiction to grant
pre-trial relief
Who bears the burden of proving a Charter violation?
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
how can one make the claim that legislation is invalid?
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
An application claiming that legislation is unconstitutional includes:
- 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
Notice of a section 52(1) application must be served
no less than 30 days before the application is to be heard
Pursuant to section 109 of the CJA, notice to the provincial AG and federal AG of a section 52(1) application must be served
at least 15 days before the day on which the question is to be argued
If an applicant is successful in establishing that the legislation contravenes the Charter, the onus will
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
which courts do not have the constitutional authority to declare a law of no force and effect?
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)
Where are Charter remedies found?
Section 24(1) of the Charter, which entitles the accused to seek a remedy that is appropriate and just in the circumstances
Under section 24(1), judges are permitted to use any remedy available
in criminal proceedings, but not those available through civil proceedings
What is the process of filing for a constitutional remedy under Charter section 24(1)?
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.
A notice of a constitutional question must be sent to the AGs of Ontario and Canada no later than
15 days before the hearing where a section 24(1) remedy is sought in relation to an act or omission of the government
What remedy is found in Charter section 24(2)?
The remedy of exclusion of evidence
Charter section 24(2) states that
evidence that is obtained unconstitutionally will be excluded if its admission would bring the administration of justice into disrepute
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?
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
What is the ceiling for presumptively unreasonable delays, set out in R v Jordan?
18 months for cases tried in provincial courts
30 months for cases tried in superiod court or provincial court after a prelim inquiry
When deciding whether section 11(b) has been infringed, the trial judge is required to take the following steps
- calculate the total delay
- subtract defence delay from the total delay
- compare the net delay to the presumptive ceiling
to rebut the presumption of an unreasonable delay, the Crown must
establish the presence of an exceptional circumstance.
