Provincial Practice Direction /Amendment to the Criminal Proceedings Rules Regarding Criminal Proceedings

August 12, 2020

Part I: Interpretation and Application of this Practice Direction

  1. This Practice Direction /Amendment to the Criminal Proceedings Rules applies to all criminal proceedings in the Ontario Superior Court of Justice. It replaces the Consolidated Criminal Practice Direction of May 1, 2017 as amended May 13, 2019.
    This Practice Direction /Amendment to the Criminal Proceedings Rules should be considered as amendments to the Criminal Proceedings Rules of the Superior Court of Justice (Ontario) These amendments are made pursuant to the Court’s rule making authority s. 482(1) of the Criminal Code.
    This document shall be considered publication of Rules or making Rules available to the public for the purposes s. 482(4) of the Criminal Code until such time as the Criminal Proceedings Rules are fully reviewed, amended and published.
  1. The purpose of this Practice Direction/ Amendment to the Criminal Proceedings Rules is to
    • enhance the timeliness, appropriate scheduling and trial readiness of criminal proceedings in the Superior Court of Justice,
    • address certain matters in respect of the open courts principle
    • address the Court’s need to modernize and increase its use of electronic processes.
  1. Subject to section 4, this Practice Direction /Amendment to the Criminal Proceedings Rules as it relates to Jordan matters applies to all Indictments in the Superior Court of Justice as of May 1, 2017.
  2. 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.
  3. The provisions in this Practice Direction /Amendment to the Criminal Proceedings Rules are subject to any orders made by the presiding judge in a specific proceeding.
  4. All references to a rule or rules in this Practice Direction /Amendment to the Criminal Proceedings Rules refer to the Criminal Proceedings Rules of the Superior Court of Justice (Ontario).
  5. All references to the Code refer to the Criminal Code.

Part II: s. 11(b) – 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 including but not limited to:         
    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.
  1. 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;
    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; and
    5. whether a matter ought to be argued in-writing, in-person, by a remote process such as audio or by video conference (subject to any consents the court determines are required) or some combination of these.

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

  1. Pre-trial conferences will be held by a remote process such as audio or video conference unless directed by the Court to be held in-person.  Either party may request that the pre-trial conference be held in person, which will be considered by the Court.

Part V: Bail Variations pursuant to s. 519.1 of the Code

  1. This part applies to consent applications under s. 519.1 of the Codeto 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. 519.1 must be brought in the Superior Court.
  3. Where an application to vary a release order on consent under s. 519.1 of the Codewithout 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. 519.1 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 release order remains in effect and that failure without lawful excuse to comply with that release order 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.
  1. Where a judge grants a variation under s. 519.1, 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 (g. an accused person or their 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. Pre-trial conferences will be held by a remote process such as audio or video conference, unless the Court orders otherwise.
  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  v. Jordan, and (iii) the materials required to be filed in support of the application.

Hearing of the s. 11(b) application

  1. Unless directed otherwise by a judge, delay applications shall be scheduled for up to 90 minutes allocated as follows:
  • Applicant – 40 minutes
  • Respondent – 40 minutes
  • Applicant’s reply – 10 minutes
  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  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  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 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) for the Central South Region.

Part VIII: Media Notification After Jury Sequestered

A. Purpose of this Part

  1. This Part applies to criminal jury trials in the Superior Court of Justice (Ontario).
  2. The purpose of this Part is to support the open courts principle by ensuring there is a process in place in every centre for giving reasonable notification to the media of court reconvening after a jury is sequestered, while ensuring the presiding judge’s control over proceedings.

B. Interpretation and Application of this Part

  1. Effective May 21, 2019, each centre of the Superior Court of Justice of Ontario, will have in place a practice that requires the Registrar or other Court Services Division representative, to notify, upon request of the media, one media representative (who agrees to notify other interested members of the media) when court is reconvening after the jury has been sequestered. Additional members of the media may be notified at the direction of the presiding judge.
  2. Each court centre will have in place, at a minimum, a process whereby at least one media representative may make a request to the Registrar to be notified. Upon receiving this request, Registrar (or other designated court staff) will

–  Notify the media representative(s) when court is reconvening, and when jury deliberations have concluded for the day. Notification of other developments such as meal breaks may be given at the discretion of the presiding judge or pursuant to local practice.

– Ensure that a process is in place to allow for the media representative(s) to be contacted by any form of communication that is reasonably available to the parties and court staff and acceptable to the presiding judge.

– Ensure that staff do not, under any circumstances, discuss or divulge information regarding the case and/or make comment on why court is reconvening, including advising that there is a verdict or question.

  1. While this Part requires that court staff notify media of major developments in jury proceedings, the court will not wait for media representatives to arrive before reconvening.
  2. Beyond the notification in this Part, court staff should not notify additional persons other than Crown counsel, defence counsel, the accused, court security, and court interpreter (if required), unless ordered to do so by the presiding judge or as pre-authorized by local practice directive.
  3. Court staff are required to ask the presiding judge for direction, if a request is received to contact any other person.

PART IX: Filing

  1. Electronic Filing: Pursuant to ss. 841-844 of the Criminal Code, all criminal filings with the SCJ are to be done electronically, by way of email or by any other method established by the Court.
  2. When a document has been filed electronically, it is not necessary to file a paper copy and the court may not accept a paper copy.
  3. Filings must also comply with any restrictions that have been placed on the length of material by the Court at a judicial pretrial, the rules or otherwise ordered by the Court.
  4. Relevant formatting rules (e.g. size of margins, etc.) as set out in the Criminal Proceedings Rules continue to apply to electronically filed documents, where feasible.
  5. Self-represented accused persons Where a self-represented person does not have access to electronic means for e-filing, the Court will continue to accept hard copy filings as set out on the Criminal Proceedings Rules, unless the Court orders otherwise. In such circumstances, self-represented parties should contact their local courthouse by email or telephone for directions as to how to proceed. Contact information for all SCJ courthouses is posted on the Ministry of the Attorney General website.
  6. Electronic Signatures:The Court will accept electronically signed documents where a signature is required.  An electronic signature consists of electronic information that identifies the signatory and the date and place of signing. Any reference to a signature in the Criminal Proceedings Rules is to be interpreted and considered amended in accordance with this section.
  7. Electronic Service: The Court dispenses with the requirement for personal service where personal service is required. Where personal service is stipulated, e-mail service, in compliance with in rules 5.05(4) and 5.01(6) of the Criminal Proceedings Rules shall suffice, so long as the requirements of Rule 5.09(5) are met.  Filed materials must indicate when and how service on responding parties was made.
  8. Proof of Service:When a document has been served by email and is being filed electronically, a formal affidavit of service is not required to be filed.  However, the person filing the document should retain a copy of any relevant affidavit(s) of service and/or related documents (e.g., email confirmations) required by Rule 5.09(5) and should be prepared to produce such documents to the Court on request.
  9. Subpoenas: For greater certainty, a subpoena may be served upon a witness by electronic means, including e-mail communication in accordance with Rule 5.05(4) and 5.01(6). Proof of service shall be in accordance with Rule 5.09(5) of the Criminal Proceedings Rules.
  10. Affidavits: Where it is not possible to administer an oath in the physical presence of the deponent, a lawyer or paralegal may commission an affidavit by video.  The affidavit should state that it was commissioned by video conference.

Where it is not possible to commission an affidavit by video conference, an unsworn affidavit may be delivered to the Court, but the deponent must be able to attend court in person or participate in any telephone or videoconference hearing to swear or affirm the affidavit.

The Court may require counsel who administers the oath by video to provide a copy of signed identification of the affiant, or an assurance to the Court that counsel viewed a copy (by video) of the affiant’s identification or provide the Court with confirmation of the affiant’s identification.

  1. Books of Authorities: Caselaw and other source materials referenced in the factum should be hyperlinked. Where hyperlinks are provided, it will not be necessary to file a Book of Authorities.
  2. Transcripts: Electronically certified transcripts will be the default format for transcripts submitted to the Court. Counsel or parties who must file a transcript should file electronic versions of the transcripts, wherever possible.
  3. Wherever possible, the parties should contact the transcriptionist and seek an electronic version for filing signed per the above. The court will continue to accept hard copy transcripts if e-transcripts are unavailable.
  4. References in the Criminal Proceedings Rules to the term “court reporter” is amended to “court transcriptionist”.[1]
  5. Faxes – All references to Faxes and Faxing in the Criminal Proceedings Rules are eliminated.
  6. References in the Rules to leaving copies of documents in the Court office or mailing documents are replaced with “submitting electronically by email or by any electronic means provided by the Court. The Court office will continue to accept hard copies from persons who do not have access to electronic means.” Any reference in the Rules to binding, size, color or weight of paper (e.g. transcripts section) is subject to this Practice Direction /Amendment to the Criminal Proceedings Rules in which electronic transcripts are the default version.
  7. Electronic Indictments – new indictments (e-indictments) submitted to the Court are to be submitted to the Court electronically by email or other electronic filing platform that may be adopted by the Court. Once the SCJ’s e-indictment process and format is fully implemented, the Court will phase out the use of paper indictments. On a date to be specified by the Chief Justice, the Court will no longer accept paper copies of Indictments.

PART X: Remote Proceedings

  1. Judicial pre-trials and administrative and scheduling appearances, will be conducted by a remote process such as video or audio unless otherwise directed by the Court. Consent is not a requirement.\
  2. In any other proceedings, where the court determines that consent of counsel to hold the proceeding remotely is required, the consent should be in writing in the form at Appendix A.
  3. For substantive matters proceeding remotely, Counsel will be required at the judicial pretrial to discuss how the matter will proceed and receive any instructions from the Court for proceeding.
  4. Wherever feasible, counsel should electronically exchange documents (e.g. casebooks, factums, exhibits ) prior to the hearing of remote matters. This provision does not compel any defendant to provide advance disclosure to the Crown.
  5. Counsel are strongly encouraged to identify all materials that are likely to become exhibits in the proceeding and to ensure that an electronic copy of all such materials is provided to the Court in advance of the proceeding. Where that is not practical, counsel should advise the court, at the outset of the proceeding, that they will be presenting material not previously filed.

PART XI: Designations

  1. The Court continues to require its own designation following committal for trial using the new SCJ Form 18 . http://ontariocourtforms.on.ca/en/forms-under-the-criminal-proceedings-rules-of-the-superior-court-of-justice/
  2. Limited Scope Designations: In addition to the full designation for retained counsel, the Court will accept filing of a “limited scope” designation that would apply for counsel who is retained only through to the conclusion of the JPT process and the setting of a trial date with or without counsel. Form 18 – NEW designation See Appendix B
  3. The defendant is bound by all positions taken at the JPT by the lawyer who is acting/appearing on the basis of the limited scope designation. Rule 28.04 (11)-(13)

Dated: August 12, 2020

Geoffrey B. Morawetz
Chief Justice
Ontario Superior Court of Justice


APPENDIX A – CONSENT FORM FOR ACCUSED: VIRTUAL HEARING

APPENDIX B – FORM 18 DESIGNATION OF COUNSEL


[1] Except R. 40.08(1)