Provincial Practice Direction Regarding Criminal Proceedings

Effective May 1, 2017

Part I: Interpretation and Application of this Practice Direction

  1. This Practice Direction applies to all criminal proceedings in the Superior Court of Justice.
  2. The purpose of this Practice Direction is to enhance the timeliness, appropriate scheduling and trial readiness of criminal proceedings in the Superior Court of Justice.
  3. Subject to section 4, this Practice Direction applies to all Indictments in the Superior Court of Justice as of May 1, 2017.
  4. Part III (Factums) does not apply to Indictments that were pre-tried before May 1, 2017 unless a subsequent pre-trial is held on or after May 1, 2017.
  5. The provisions of this Practice Direction are being incorporated into the Criminal Proceedings Rules of the Superior Court of Justice (Ontario). This Practice Direction will remain in effect until the revisions to the Criminal Proceedings Rules of the Superior Court of Justice (Ontario) incorporating these provisions are published in the Canada Gazette pursuant to s. 482 of the Criminal Code.
  6. The provisions in this Practice Direction are subject to any orders made by the presiding judge in a specific proceeding.
  7. All references to a rule or rules in this Practice Direction refer to the Criminal Proceedings Rules of the Superior Court of Justice (Ontario).
  8. All references to the Code refer to the Criminal Code.

Part II: Appearances on Indictments

  1. On every appearance on an indictment in the Superior Court of Justice, Crown and defence counsel and any self-represented accused person must be prepared to advise the presiding judge whether any
    1. previous time periods in the case in either the Superior Court of Justice or the Ontario Court of Justice; and
    2. any adjournments or time periods to future scheduled events in the Superior Court of Justice

are attributable to defence delay or exceptional circumstances as described in R. v. Jordan, 2016 SCC 27.  Counsel must also be prepared to identify the start and end dates for any such time periods.

Part III: Factums

  1. Unless otherwise ordered by a judge, factums are required for all applications:
    1. change of venue applications under rule 22;
    2. applications to take evidence on commission under rule 24;
    3. applications regarding constitutional issues under rule 27 (including applications regarding s. 11(b) of the Charter);
    4. applications to admit evidence under rule 30; and
    5. applications to exclude evidence under rule 31.
  2. Factums shall comply with rule 33, unless otherwise ordered by a judge.

Part IV: Pre-trial Conferences

A. Updated Pre-trial Forms

  1. Counsel (and accused, if self-represented) shall use the updated version of the pre-trial conference report (Form 17) dated May 2017 available on the Ontario Court Forms website. As of May 15, 2017, the Court may refuse to accept filing of any previous versions of the pre-trial conference report (Form 17).
  2. The pre-trial conference judge shall use the updated version of the Report to Trial Judge (Form 18-A1) dated May 2017.

B. Directions and Orders of Pre-Trial Conference Judge

  1. The pre-trial conference judge may make any order that the rules provide may be made by a judge, including an order with respect to the following:
    1. directing that factums are required, or are not required, in respect of a particular application;
    2. the nature, scope and content of other materials required in support of an application;
    3. the manner and timelines for the service and filing of notices, application records factums or other materials in support of an application; and
    4. setting time limits for oral arguments of pre-trial applications that parties should expect will be imposed subject to the discretion of the trial judge.

C. Conducting Pre-trial Conferences by telephone or video conference

  1. A judge may direct that a pre-trial conference be held by telephone conference or by video conference, either on request of one or more parties, or on his or her own initiative.

Part V: Bail Variations pursuant to s. 515.1 of the Code

  1. This part applies to consent applications under s. 515.1 of the Code to vary release orders issued under ss. 499, 503 or 515 of the Code.
  2. Where the applicant has been committed for trial in the Superior Court of Justice, all applications under s. 515.1 must be brought in the Superior Court.
  3. Where an application to vary a release order on consent under s. 515.1 of the Code without a court attendance is filed, the reviewing judge may
    1. grant the order;
    2. direct that a court attendance is required, including a direction that the application proceed as an application under s. 520 or s. 521 of the Code; or
    3. give other directions regarding the application.
  4. All applications under s. 515.1 seeking an order without a court attendance shall include:
    1. a notice of application clearly identifying the content of the term(s) sought to be varied and supported by the following;
      1. a copy of the release order that the applicant wants varied, including all previous variations of the release order;
      2. a sworn affidavit from the applicant confirming that the applicant understands that the original Undertaking or Recognizance remains in effect and that failure without lawful excuse to comply with that Undertaking or Recognizance as it has been varied is an offence contrary to the Criminal Code; and
      3. a sworn affidavit from each surety that includes (1) the surety’s position with respect to the variation(s) being sought and (2) that the surety agrees to be bound by the order as varied and understands that if the order is varied that the surety is bound by it; or
    2. a completed Form 10B with a copy of the release order that the applicant wants varied.
  5. Where a judge grants a variation under s. 515.1, the Form 10B signed by the judge or, where the Form 10B is not used, the order or endorsement of the judge granting the variation, together with the original (now varied) release order, are the release orders.

Part VI: Applications under s. 11(b) of the Canadian Charter of Rights and Freedoms

A. Scheduling of s. 11(b) Applications

Pre-trial Conference

  1. Where the defence (e. an accused person or his/her counsel) intends to bring a s. 11(b) application but did not indicate this at the pre-trial conference, the defence must provide written notice of this change in position to the Crown, any other accused and the Superior Court trial coordinator, and arrange for a further pre-trial conference as soon as practicable, as required under rule 28.04(11).
  2. The court may permit and/or direct that this pre-trial conference be conducted by teleconference.
  3. The pre-trial conference judge will inquire about and discuss any matter that may promote a fair and expeditious hearing of the s. 11(b) application including, but not limited to, (i) the scheduling of the application; (ii) the parties’ positions as to the cause of any particular periods of delay in the case, including whether the delay is attributable to the defence or to “extraordinary circumstances”, as defined in R. v. Jordan, and (iii) the materials required to be filed in support of the application.

Hearing of the s. 11(b) application

  1. Unless otherwise directed by a judge, all s. 11(b) applications must be scheduled to be heard at least 60 days before the first scheduled day of trial or, where pre-trial applications are scheduled to be heard separately in advance of the trial, at least 60 days before the first scheduled day of pre-trial applications.
  2. Before filing a s. 11(b) application, the applicant must obtain a hearing date from the court. Before seeking this date from the court, the applicant will be expected to consult with the Crown and any other accused to canvass all parties’ available dates and a reasonable time estimate for the hearing of the application.
  3. Unless otherwise directed by a judge, the materials in support of the application must be served and filed in accordance with the timelines set out in rules 27.04 and 33:
    1. the applicant’s materials must be filed at least 30 days before the hearing of the application; and
    2. the respondent’s materials must be filed at least 10 days before the hearing of the application.

B. Supporting Materials in s. 11(b) Applications

Factums

  1. Unless otherwise directed by a judge, factums are required for all s. 11(b) applications, as per rule 27.05(8).
  2. The factums should clearly identify any periods of delay within the case that the party submits should be characterized as attributable to the defence or to “exceptional circumstances”, as defined in R. v. Jordan.
  3. In addition, in transitional cases, (e. cases with a charge date before July 8, 2016), the factum should clearly attribute each period of time in the proceeding to one of the five categories of delay identified in R. v. Morin ((i) inherent time requirements; (ii) delay attributable to the accused/defence; (iii) Crown delay; (iv) institutional delay and (v) other reasons for delay).
  4. The information described in paragraphs 28 – 29 should be set out in a chart (or charts) attached to the factum setting out the history of the proceeding from the date of charge until the anticipated disposition of the proceeding.

Transcripts

  1. Unless otherwise directed by a judge and subject to paragraph 32 below, the applicant’s application record must contain the transcripts of all prior court appearances in the case. Where an appearance included the hearing of evidence and submissions, only the portion of the transcript reflecting discussions about adjournments, scheduling and selection of the next court need be provided.
  2. The court encourages and expects the parties to work together to identify any periods of delay within the case that all parties agree are attributable to the defence or to “exceptional circumstances”, as defined in R. v. Jordan, or (in transitional cases) to one of the five categories of delay identified in R. v. Morin ((i) inherent time requirements; (ii) delay attributable to the accused/defence; (iii) Crown delay; (iv) institutional delay and (v) other reasons for delay). Where the parties reach such an agreement, an agreed statement of fact may be filed with respect to that period, rather than transcripts.

Part VII:  Related Amendments to Other Superior Court of Justice Practice Directions

  1. The following Superior Court of Justice Practice Directions (or portions thereof) are revoked:
    1. the entire Provincial Practice Direction Regarding Applications under s. 11(b) of the Canadian Charter of Rights and Freedoms;
    2. section A of part III (Bail Variations pursuant to section 515.1 of the Criminal Code) of the Consolidated Practice Direction for the Central West Region; and
    3. section H of part III (Bail Variations pursuant to section 515.1 of the Criminal Code) of the Consolidated Practice Direction for the Central South Region.

Dated:  April 18, 2017

Heather J. Smith
Chief Justice
Superior Court of Justice (Ontario)