PART 1General

Marginal note:Definitions

1 The definitions in this section apply in these Rules.

application

application means a proceeding commenced by notice of motion whether described in the enabling legislation or another authority as an application or a motion. (demande)

Attorney General

Attorney General means the Attorney General, either of Canada or of the Northwest Territories, at whose instance criminal proceedings are initiated or conducted. (procureur général)

Charter

Charter means the Canadian Charter of Rights and Freedoms Part I of the Constitutional Act, 1982. (Charte)

Chief Justice

Chief Justice means the Chief Justice of the Court or, if no Chief Justice is appointed, the senior judge. (juge en chef)

Clerk

Clerk means the Clerk of the Court appointed under the Judicature Act, R.S.N.W.T. 1988, c. J-1, and includes a deputy clerk. (greffier)

Code

Code means the Criminal Code. (Code)

counsel

counsel means the solicitor representing a party on a proceeding and includes the solicitor of record or an agent of that solicitor. (avocat)

Court

Court means the Supreme Court of the Northwest Territories and includes a judge. (tribunal)

judge

judge means a judge of the Court and includes a deputy and an ex officio judge. (juge)

originating process

originating process includes a notice of motion and a notice of appeal. (acte introductif d’instance)

proceeding

proceeding includes a trial, application, appeal or other hearing. (instance)

prosecutor

prosecutor means the Attorney General or, where the Attorney General does not intervene, the person who institutes a proceeding to which the Code applies, and includes counsel acting on behalf of either of them. (poursuivant)

respondent

respondent means a person against whom an application is made or an appeal is brought, as the case may be. (intimé)

solicitor

solicitor means a barrister and solicitor entitled to practise law in the Northwest Territories who has, on behalf of an accused, appeared in court or filed documents in a proceeding. (procureur)

solicitor of record

solicitor of record means the solicitor who represents or represented the accused in the proceeding that is the subject of the application or the appeal. (procureur inscrit au dossier)

Marginal note:Interpretation

2 Unless otherwise provided in these Rules, sections 2 and 3 of the Code apply to these Rules.

Marginal note:Application

3 These Rules apply to all proceedings, within the jurisdiction of the Court, instituted in relation to any matter of a criminal nature or arising from or incidental to any such proceedings.

Marginal note:Intention of Rules

4 These Rules are intended to provide for the just determination of every criminal proceeding and shall be liberally construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.

Marginal note:Where matter not provided for in Rules

5 Where a matter is not provided for in the Code or these Rules, the procedure shall be as specified by the Court or determined by analogy to the rules of the Court relating to civil actions.

Marginal note:Where accused acts in person

6 Where an accused is not represented by a solicitor but acts in person, anything that these Rules require a solicitor to do shall be done by the accused and anything that these Rules permit a solicitor to do may be done by the accused.

Marginal note:Reference to subrule

7 A reference in these Rules to a subrule is a reference to the subrule of the rule in which the reference occurs, unless the context indicates otherwise.

Marginal note:Forms

8 The forms set out in the schedule shall be used where applicable and with such modifications as the circumstances require.

PART 2Service of Documents

Marginal note:Personal service not required

9 Unless these Rules or an order of the Court requires otherwise, a notice of motion, notice of appeal or other document need not be served personally.

Marginal note:Manner of service

10 A document that is not required to be served personally

• (a) shall be served on a party who has a solicitor of record by serving the solicitor in a manner provided in rule 11 or 12; or

• (b) may be served on a party acting in person or on a person who is not a party

  • (i) by mailing a copy of the document to the last address for service provided by the party or person or, if no such address has been provided, to the last known address of the party or person, or

  • (ii) by personal service.

Marginal note:Service on solicitor of record

11 Service of a document on the solicitor of record of a party may be made

• (a) by mailing a copy of the document to the solicitor’s office;

• (b) by leaving a copy of the document with a solicitor or employee in the solicitor’s office; or

• (c) by transmitting, by telecopier, a copy of the document accompanied by a cover page indicating the following:

  • (i) the sender’s name, address and telephone number,

  • (ii) the name of the solicitor being served,

  • (iii) the date and time of transmission,

  • (iv) the total number of pages transmitted, including the cover page,

  • (v) the telecopier telephone number from which the document is transmitted, and

  • (vi) the name and telephone number of a person to contact in the event of transmission problems.

Marginal note:Service on prosecutor

12 In addition to the methods of service listed in rule 11, the prosecutor in a proceeding may be served with a document by leaving a copy of the document at the office of the prosecutor having carriage of the proceeding.

Marginal note:Service by mail

• 13 (1) Service of a copy of a document by mail under these Rules shall be effected by sending it by prepaid, registered or certified mail.

• (2) Unless there is evidence to the contrary, service of a document by mail is deemed to be effective on the seventh day after the day on which the document is mailed.

Marginal note:Evidence respecting notice

14 Notwithstanding that a person has been served with a document in accordance with these Rules, the person, on a motion to set aside the consequences of default, for an extension of time or in support of a request for an adjournment, may show that the document

• (a) did not come to his or her notice; or

• (b) came to his or her notice only at some time later than the time it was served or is deemed to have been served.

Marginal note:Order validating service

15 Where a document has been served in a manner other than one specified in these Rules or in an order, the Court may make an order validating the service if the Court is satisfied that

• (a) the document came to the notice of the person to be served; or

• (b) the document was served in a manner such that it would have come to the notice of the person to be served, except for the person’s own attempt to evade service.

Marginal note:Substitutional service, dispensing with notice

• 16 (1) Where it appears to the Court that it is impractical for any reason to effect prompt service of a document in accordance with these Rules, the Court may make an order

  • (a) for substitutional service; or

  • (b) dispensing with service, if the Court considers it necessary in the interests of justice.

• (2) Where the Court makes an order for substitutional service, it shall specify in the order when service in accordance with the order shall be deemed to be effective.

PART 3Applications Generally

Marginal note:Application of Part

17 This Part applies to all proceedings commenced by notice of motion, except where these Rules provide otherwise or as ordered by a judge.

Marginal note:Commencement of application

18 Where the Code, or any other enactment to which the procedural provisions of the Code apply, authorizes, permits or requires that an application or motion be made to, or an order or determination be made by, a judge of or presiding in the superior court of criminal jurisdiction or a judge as defined in section 552 of the Code, other than a judge presiding at trial on an indictment, the application or motion shall be made by notice of motion in Form 1 of the schedule.

Marginal note:Contents of notice of motion

19 A notice of motion must set out the following:

• (a) the place, date and time of the hearing;

• (b) the precise relief sought;

• (c) the grounds to be argued, including a reference to any statutory provision or rule on which the applicant relies;

• (d) the documentary, affidavit and other evidence to be used at the hearing of the application; and

• (e) where an order is required abridging or extending the time for service or filing of the notice of motion or supporting materials, a statement to that effect.

Marginal note:Service of notice of motion

• 20 (1) A notice of motion, together with all supporting evidence, shall be served on all parties.

• (2) Where there is uncertainty whether anyone not a party to an application or motion should be served, the applicant may apply ex parte to a judge for an order for directions.

• (3) Except where otherwise provided, a notice of motion shall be served at not less than seven days before the day the application is to be heard.

• (4) The notice of motion and supporting evidence may be served before it is filed with the Clerk.

Marginal note:Hearing in chambers of court

21 An application may be heard in chambers or in court as the presiding judge directs.

Marginal note:Direction for written argument

22 Where all parties agree, the Court may, on such terms as it considers just, direct that argument on an application be presented in writing rather than on the personal appearance of parties or the solicitors for the parties.

Marginal note:Consent to draft order

23 The respondent may consent in writing to an order sought on the terms that are set out in the draft order and a judge, if satisfied that the relief sought by an applicant should be granted, may grant the order on the terms set out without the attendance of counsel.

Marginal note:Application by telephone or video conference

• 24 (1) With consent of all parties and with leave of the judge, an application may be made by telephone or by video conference to a judge in chambers.

• (2) A judge who hears an application by telephone or video conference may, where the judge considers that the personal attendance of the solicitors for the parties or the accused is desirable, direct that the application be heard or completed in chambers or in court with the personal attendance of the solicitors or the accused.

Marginal note:Memorandum of cases and authorities

25 Unless otherwise ordered, the solicitor for each party to an application shall, not less than 48 hours before the application is to be heard, file and serve a memorandum setting out the cases, statutory provisions and any other authorities the solicitor intends to rely on at the hearing.

Marginal note:Affidavit evidence

• 26 (1) Evidence on an application may be given by affidavit unless the Code or other applicable statute provides or a judge orders otherwise.

• (2) A deponent may state in an affidavit only facts that are within the personal knowledge of the deponent or other evidence that the deponent would be permitted to testify to as a witness in court.

• (3) An affidavit may contain statements of the deponent’s information and belief with respect to facts that are not contentious, if

  • (a) the source of the information and the fact of belief are specified in the affidavit; or

  • (b) these Rules do not provide otherwise.

Marginal note:Cross-examination on affidavit

• 27 (1) Subject to the Code and any other applicable statute or rule of law, a deponent may be cross-examined on his or her affidavit

  • (a) before the return date of the application where there is sufficient time to permit a transcript of the cross-examination to be filed with the Clerk before that date; or

  • (b) before the judge presiding on the hearing of the application, with leave of that judge.

• (2) The deponent to be cross-examined may be required to attend for cross-examination in the same manner as a party to be examined for discovery pursuant to the rules of the Court relating to civil actions.

Marginal note:Oral evidence

• 28 (1) A witness may be examined or cross-examined on the hearing of an application with leave of the presiding judge.

• (2) Nothing in these Rules shall be construed to affect the authority of a judge hearing an application to receive evidence through the examination of witnesses.

Marginal note:Power of judge

29 A judge, before or on the hearing of an application, may dispense with the filing of a transcript or an affidavit required by these Rules and act on a statement of facts agreed to by the prosecutor and the accused.

Marginal note:Abandonment

• 30 (1) An applicant who desires to abandon his or her application shall file and serve a notice of abandonment in Form 2 of the schedule that is

  • (a) signed by the solicitor of record on the application; or

  • (b) signed by the applicant and

    • (i) accompanied by an affidavit of execution verifying the signature, or

    • (ii) witnessed by an officer of the institution in which the applicant is confined.

• (2) On the filing of a notice of abandonment, the Clerk shall note the application dismissed as abandoned without the attendance of counsel or the applicant.

• (3) An applicant who fails to appear, either in person or by a solicitor, at the hearing of an application shall be deemed to have wholly abandoned the application.

PART 4Applications for Judicial Interim Release and Review

Marginal note:Application of Part

• 31 (1) This Part applies to an application

  • (a) by an accused under subsection 520(1) or (8) of the Code, or for an order under subsection 522(2) of the Code;

  • (b) by the prosecutor under subsection 521(1) of the Code; and

  • (c) by an accused or the prosecutor at any time before trial for an order under subparagraph 523(2)(c)(ii) of the Code.

• (2) This Part, except for the requirement to file a notice of motion in subrule 32(1), applies, with such modifications as the circumstances require, to proceedings for a review of detention under section 525 of the Code.

Marginal note:Application

• 32 (1) An application shall be made by notice of motion in Form 1 of the schedule.

• (2) A notice of motion must be accompanied by the following:

  • (a) where the applicant is the accused, an affidavit of the applicant containing the information specified in subrule (3);

  • (b) where the applicant is the accused and it is practicable to do so, an affidavit of each person proposed to serve as a surety for the accused if released, disclosing that person’s willingness to serve as a surety and the amount for which that person is to be liable;

  • (c) where the applicant seeks a review of an order earlier made, a transcript of the proceedings on the judicial interim release hearing under section 515 or 522 of the Code, as the case may be, and of any previous review proceeding taken before a justice or judge; and

  • (d) a legible copy of each exhibit capable of reproduction that was filed on the judicial interim release hearing or in any previous review proceeding.

• (3) The affidavit of the applicant required by subrule (2)(a) must disclose

  • (a) the particulars of the charge on which release is sought and any other charge outstanding against the applicant, together with the dates scheduled for trial or preliminary inquiry in respect of the charges, if such dates are known;

  • (b) the applicant’s record of criminal convictions, if any;

  • (c) the applicant’s place of residence in the three years preceding the date of the offence charged on which release is sought and the place where the applicant proposes to reside if released;

  • (d) the applicant’s employment in the three years preceding the date of the offence charged on which release is sought and a statement indicating whether and where the applicant expects to be employed on release; and

  • (e) the conditions on which the applicant proposes that release be granted including, where practicable,

    • (i) the amount of any recognizance or deposit, and

    • (ii) the name and address of any proposed surety and the amount for which each proposed surety is to be liable.

• (4) Where a transcript of a previous review proceeding is not available, the applicant’s affidavit must contain a summary of the material evidence given at the previous proceeding.

• (5) Where the applicant is the prosecutor or where, as respondent, the prosecutor desires to assert that the detention of the accused is necessary in the interest of public safety, the prosecutor may file an affidavit setting out the facts on which he or she relies, including the evidence referred to in paragraph 518(1)(c) of the Code.

Marginal note:Memorandum not required

33 Notwithstanding rule 25, a memorandum of cases, statutory provisions and other authorities is not required for an application.

Marginal note:Notice

34 A notice of motion and the supporting materials shall be served on the accused or prosecutor, as the case may be, in accordance with subsection 520(2) of the Code.

Marginal note:Order

• 35 (1) An order directing the terms on which an accused is to be released from custody on application under this Part may be in Form 3 of the schedule.

• (2) An order in Form 3 of the schedule is sufficient authority for a justice or the Clerk to execute the necessary undertaking or recognizance when satisfied that any condition precedent to the order has been met.

PART 5Date and Place of Trial

Marginal note:Manner of setting date and place

36 The Chief Justice may, from time to time, give directions respecting the manner of setting the date and place of trials.

Marginal note:Place of trial

• 37 (1) Unless the convenience of the parties and witnesses otherwise requires, a trial shall be held in the community

  • (a) at or nearest the place where the offence is alleged to have been committed; and

  • (b) in which there are adequate facilities available to house the court and jury and to conduct the trial.

• (2) Where there is a concern that the facilities at a proposed place of trial are not adequate, a judge may direct the Clerk or Sheriff to investigate the availability of adequate facilities and make a report in accordance with subrule (3).

• (3) The report of the Clerk or Sheriff shall

  • (a) contain a specific recommendation as to the feasibility of holding the trial at the community at or nearest the place where the offence is alleged to have been committed; and

  • (b) make a recommendation, if necessary, as to alternate places of trial.

• (4) The Clerk or Sheriff, as the case may be, shall provide the report to the judge, to the accused, or his or her counsel, and to the prosecutor.

• (5) Where the Clerk or Sheriff, as the case may be, recommends that the trial should not be held at the place where it would normally be held under subrule (1), a judge may entertain submissions from the accused and the prosecutor as to a suitable place for trial.

• (6) Nothing in this rule limits the discretion of the Court to determine the place of trial.

Marginal note:Application for change of venue

• 38 (1) An application for a change of venue of a trial shall be made by notice of motion in Form 1 of the schedule

  • (a) before the commencement of the trial; or

  • (b) in the case of a jury trial, not less than 21 days before the date scheduled for the selection of the jury for the trial.

• (2) An application may be heard by the trial judge or by any other judge.

• (3) An application must be supported by an affidavit of or on behalf of the applicant setting out with particularity the grounds relied on for the application and the proposed place of trial.

Marginal note:Place of pre-trial applications

39 Notwithstanding the place of trial, an application or proceeding that may be taken before the trial may be heard at such place as the judge considers appropriate, having regard to the convenience of the Court and the parties.

PART 6Applications for Adjournment

Marginal note:Application of Part

40 This Part applies to an application on behalf of an accused or the prosecutor for an order adjourning trial proceedings after a date has been fixed for trial, but before commencement of the trial.

Marginal note:Judge

41 An application for an adjournment may be heard by the trial judge or by any other judge.

Marginal note:Application

• 42 (1) An application shall be made by notice of motion in Form 1 of the schedule, which must be accompanied by an affidavit of or on behalf of the applicant that

  • (a) sets out the particulars of the indictment containing the charge on which trial proceedings are scheduled to commence;

  • (b) sets out the particulars of any prior application, whether on behalf of the accused or the prosecutor, to have the trial adjourned from a date fixed for trial to a subsequent date, including, where available, a transcript of the proceeding taken on the prior application;

  • (c) states all facts material to a determination of the application without disclosing any solicitor-client communications in respect of which solicitor-client privilege has not been waived; and

  • (d) states the date or dates to which it is proposed the matter be adjourned for trial.

• (2) Notwithstanding rule 25, a memorandum of cases, statutory provisions and other authorities is not required on an application.

Marginal note:Consent adjournment

• 43 (1) Where both the prosecutor and the accused agree that the trial be adjourned, they may make a joint request by a written memorandum for a judge’s fiat directing that the matter be adjourned to a date that is certain or to be set.

• (2) The written memorandum shall set out the reasons for the request for adjournment.

PART 7Applications to Procure Attendance of Prisoners

Marginal note:Application of Part

44 This Part applies to an application under subsection 527(1) of the Code to procure the attendance of a person who is confined in a prison.

Marginal note:Applicant, time of application

• 45 (1) Where the person who is confined is the accused, the application shall be made by

  • (a) counsel for the accused; or

  • (b) if the accused does not have counsel, the prosecutor.

• (2) Where the person who is confined is a witness, the application shall be made by counsel for the party that plans to call that witness.

• (3) An application shall be made ex parte to a judge as soon as is reasonably practicable and sufficiently before attendance is required to ensure that no adjournment of the proceeding will be required for attendance and to provide adequate notice to the authorities holding and transporting the person who is confined.

• (4) Except by leave of a judge, an application shall be made not less than four days before the day attendance is required.

Marginal note:Application

46 The application shall be made by filing with the Clerk the following:

• (a) a memorandum to the judge signed by counsel for the applicant in which reference is made to the relevant provisions of the Code;

• (b) an affidavit of or on behalf of the applicant

  • (i) that sets out the material facts, including

    • (A) the charge and proceedings in respect of which the application is made,

    • (B) the date on which the attendance of the person who is confined is required, and

    • (C) the reasons why the attendance of the person who is confined is required, and

  • (ii) to which a copy of the warrant, if any, is attached as an exhibit; and

• (c) a draft order for removal, in Form 4 of the schedule, containing the necessary directions.

PART 8Issuance of Subpoenas

Marginal note:Application under subsection 698(1) or 699(1) of the Code

• 47 (1) A subpoena issued pursuant to subsection 698(1) or 699(1) of the Code may be issued by the Clerk under the seal of the Court on the applicant for the subpoena filing with the Clerk the following:

  • (a) a memorandum, signed by counsel for the applicant or by the applicant personally if not represented by counsel, setting out the name and address of the proposed witness and a summary of the alleged materiality of the evidence to be given; and

  • (b) a draft subpoena.

• (2) Where the Clerk determines that it is necessary to protect the identity and address of the proposed witness for his or her personal safety, the Clerk may place the memorandum and subpoena in a sealed envelope that shall then be placed on the court file.

Marginal note:Application under paragraph 699(2)(b) of the Code

• 48 (1) An application under paragraph 699(2)(b) of the Code for the issuance of a subpoena to a person out of the Northwest Territories shall be made ex parte to a judge.

• (2) The application must contain the following:

  • (a) a memorandum to the judge outlining the order sought;

  • (b) an affidavit of or on behalf of the applicant setting out the material facts relied on, including the alleged materiality of the evidence to be given;

  • (c) a statement by counsel for the applicant confirming that he or she has canvassed the possibility of admissions with counsel for the respondent or that other measures have been taken so as to avoid the necessity of personal attendance by the intended witness;

  • (d) a fiat endorsed on the memorandum to the judge for the judge’s signature; and

  • (e) a draft subpoena.

• (3) On execution of the fiat by a judge, the Clerk shall issue the subpoena.

• (4) The subpoena must have added to it the following recital:

  “And whereas an Order was made under paragraph 699(2)(b) of the Criminal Code by the Honourable Justice of the Supreme Court of the Northwest Territories on the day of , , authorizing issuance of this subpoena;”

PART 9Applications to Quash a Subpoena

Marginal note:Application of Part

49 This Part applies to an application to quash a subpoena.

Marginal note:Time for application

• 50 (1) An application shall be made by notice of motion in Form 1 of the schedule to any judge of the Court before the commencement of trial or to the trial judge.

• (2) The Court may waive the requirement for written notice where the Court considers it necessary and expedient to do so.

Marginal note:Application

51 The notice of motion shall be accompanied by an affidavit of or on behalf of the applicant setting out

• (a) the material grounds supporting the application;

• (b) the interest of the applicant in the proceeding; and

• (c) the precise terms of the order sought.

Marginal note:Evidence

• 52 (1) The judge hearing an application may permit evidence to be given orally or otherwise as the judge considers necessary to determine the issues.

• (2) The party who issued the subpoena shall disclose to the judge hearing the application, by affidavit or otherwise, the purpose for which the witness is required to testify and the likelihood of the witness giving material evidence.

PART 10Applications Respecting Crown Disclosure

Marginal note:Application of Part

53 This Part applies to an application by an accused to compel the disclosure by the prosecutor of information or documents within the possession or control of the prosecutor.

Marginal note:Application for disclosure

• 54 (1) An application shall be made by notice of motion to

  • (a) the trial judge, where one has been designated; or

  • (b) any judge of the Court before the commencement of trial, where the trial judge has not been designated.

• (2) In the case of an application brought after the commencement of trial, the trial judge may waive the requirement of written notice.

• (3) The judge hearing the application may permit evidence to be given by affidavit or orally or otherwise as the judge considers necessary to determine the issues.

• (4) The hearing shall be conducted as a voir dire, and may be conducted in camera if the presiding judge considers it necessary in the interests of justice to do so.

Marginal note:Where prosecutor alleges information, documents should not be disclosed

• 55 (1) Where an application for disclosure is brought and the prosecutor alleges that information or documents should not be disclosed on the grounds of privilege, relevance or otherwise, the prosecutor shall prepare and file an inventory of the information or documents for reference at the hearing of the application.

• (2) The inventory to be prepared by the prosecutor must

  • (a) individually designate each item of information or document;

  • (b) provide a summary description of the nature and date of the material contained in each item; and

  • (c) state the grounds on which the prosecutor relies to withhold disclosure.

Marginal note:Order

• 56 (1) The judge hearing the application may compel the production of all or any of the information or documents for review in private.

• (2) In order to assist in the review, the judge may conduct all or part of the review in camera with only counsel present.

PART 11Production of Third Party Documents

Marginal note:Application of Part

• 57 (1) This Part applies generally to an application to compel the production of documents in the possession or control of parties other than the prosecutor.

• (2) Subject to any special statutory provisions, this Part applies, with such modifications as the circumstances require, to production of third party documents.

Marginal note:Application for production

• 58 (1) An application shall be made by notice of motion in Form 1 of the schedule supported by an affidavit of or on behalf of the applicant setting out with particularity the documents sought and the specific grounds for production.

• (2) The requirement for written notice of motion and an affidavit may be waived by the presiding judge where the judge considers it necessary in the interests of justice.

Marginal note:Notice of application

• 59 (1) The notice of motion and a copy of any supporting affidavit shall be served on

  • (a) the prosecutor;

  • (b) the person, agency or other body in possession of the documents sought to be disclosed;

  • (c) the person to whom the documents relate; and

  • (d) any other person who, to the knowledge of the applicant, may have a reasonable expectation of privacy in respect of the documents.

• (2) In addition to serving notice, the applicant shall obtain and serve on the custodian of the documents a subpoena requiring that the documents be sealed and brought to the hearing of the application.

Marginal note:Hearing

• 60 (1) The application shall be heard by

  • (a) the trial judge, where one has been designated; or

  • (b) any judge of the Court, where the trial judge has not been designated.

• (2) The judge hearing the application may permit evidence to be given by affidavit or orally or otherwise as the judge considers necessary to determine the issues.

• (3) The hearing shall be conducted as a voir dire, and may be conducted in camera if the presiding judge considers it necessary in the interests of justice to do so.

Marginal note:Persons entitled to present evidence, argument

61 The custodian of the documents, the person to whom the documents relate and any person who has a privacy interest in the documents are entitled to present evidence and argument as to the issues raised by the application, but they are not compellable witnesses on the hearing of the application at the instance of either the accused or the prosecutor.

Marginal note:Review of documents

62 Where the judge is satisfied that the documents are likely to be relevant to an issue in the proceeding or to the competence of a witness to testify, the documents shall be produced to the judge who shall review them to determine if the documents, or any part of them, should be produced to the accused and the prosecutor.

Marginal note:Where documents not to be disclosed

• 63 (1) Subject to any order made on a subsequent application, where the judge determines that documents shall not be disclosed, the documents shall be sealed and retained on file until the proceedings against the accused are completed and all levels of appeal exhausted, at which time they shall be returned by the Clerk to their original custodian.

• (2) Where the judge determines that it is necessary, the Clerk may return the original documents to the original custodian and, where the Clerk does so, the Clerk shall retain certified copies of the documents on the file.

Marginal note:Application for further order

• 64 (1) An order refusing disclosure does not prevent a subsequent application to the trial judge for such an order where there is additional or other evidence arising to support it.

• (2) Any party to an application for disclosure may apply to the judge who made an order or to the trial judge for a variation of an order previously made.

PART 12Constitutional Issues

Marginal note:Application of Part

65 This Part applies to an application in a criminal proceeding:

• (a) to declare that an enactment of the Parliament of Canada, in whole or in part, is unconstitutional and of no force and effect;

• (b) to declare that a rule or principle of law applicable to a criminal proceeding, in whole or in part, whether on account of subsection 8(2) or (3) of the Code or otherwise is unconstitutional and of no force and effect; and

• (c) to stay proceedings, in whole or in part, on an indictment against an accused or for any other remedy under subsection 24(1) of the Charter or subsection 52(1) of the Constitution Act, 1982 on account of an infringement or denial of any right or freedom guaranteed by the Charter or otherwise, other than an application to exclude evidence under Part 13.

Marginal note:Time for application

66 An application referred to in rule 65 shall be made to

• (a) the trial judge, where one has been designated; or

• (b) any judge of the Court before the commencement of trial, where the trial judge has not been designated.

Marginal note:Application

67 The application shall be brought by notice of motion in Form 5 of the schedule, which must state

• (a) the place, date and time of the hearing;

• (b) the precise relief sought on the application;

• (c) the grounds to be argued, including a concise statement of the constitutional issues to be raised, a statement of the constitutional principles to be argued and a reference to any statutory provision or rule on which the applicant relies;

• (d) the documentary, affidavit and other evidence to be used at the hearing of the application; and

• (e) where an order is required abridging or extending the time for service or filing of the notice of motion or supporting materials, a statement to that effect.

Marginal note:Service and notice

• 68 (1) Service of the notice of motion and supporting materials shall be made on

  • (a) the office of the Attorney General of Canada at Yellowknife, Northwest Territories;

  • (b) the office of the prosecutor having carriage of the proceeding; and

  • (c) such other person and on such terms as a judge may direct.

• (2) Where applicable, the applicant shall comply with the notice requirements of section 59 of the Judicature Act, R.S.N.W.T. 1988, c. J-1.

• (3) The notice of motion and supporting materials shall be served not less than 14 days before the date of the hearing.

Marginal note:Materials to be filed

• 69 (1) In addition to any other material that may be required by the rules applicable in the proceeding in which the constitutional issue is raised, the application must be accompanied by

  • (a) a copy of the indictment to which the constitutional issue raised in the notice of motion relates;

  • (b) a transcript of any proceeding earlier taken that is material to a determination of the constitutional issue raised in the notice of motion;

  • (c) an affidavit of or on behalf of the applicant deposing to the matters set out in subrule (2); and

  • (d) a copy of any other material that may be necessary for the hearing and determination of the constitutional issue raised in the notice of motion.

• (2) The affidavit of or on behalf of the applicant must include

  • (a) a description of the deponent’s status and the basis of his or her knowledge of the matters deposed;

  • (b) a statement of the particulars of the charge to which the application relates including, where the application alleges a breach of paragraph 11(b) of the Charter, a full statement of the history of the proceedings against the applicant before the date scheduled for trial; and

  • (c) a statement of all facts material to a just determination of the constitutional issue that are not disclosed in any other material filed in support of the application.

• (3) A respondent who seeks to rely on material other than the material required under subrule (1) or (2) shall file affidavit material setting out the facts on which he or she relies.

Marginal note:Pre-hearing brief

• 70 (1) In place of the memorandum of authorities required by rule 25, each party appearing on the hearing shall file and serve on every other party a pre-hearing brief containing

  • (a) a succinct outline of the argument the party intends to make;

  • (b) a concise statement of the principles of law on which the party relies; and

  • (c) copies of relevant cases, statutory provisions and other authorities.

• (2) The pre-hearing brief of the applicant shall be filed and served not less than seven days before the hearing.

• (3) The pre-hearing brief of a respondent shall be filed and served not less than three days before the hearing.

Marginal note:Intervention

71 Any person interested in a proceeding between other parties may, by leave of the judge presiding over that proceeding or by order of a judge of the Court, intervene in the proceeding on such terms and conditions and with such rights and privileges as the judge may determine.

PART 13Applications to Exclude Evidence

Marginal note:Application of Part

72 This Part applies to an application by an accused under subsection 24(2) of the Charter for an order excluding evidence obtained in a manner that infringed or denied a right or freedom guaranteed by the Charter.

Marginal note:Application

• 73 (1) An application shall be brought by notice of motion in Form 1 of the schedule before the judge presiding at the trial of the charge against the applicant.

• (2) The application may be brought before

  • (a) the selection of a jury, where the accused is to be tried before a jury; or

  • (b) the commencement of the trial, where the accused is to be tried before a judge.

• (3) The judge may waive the requirement for written notice where the judge considers it necessary and expedient to do so.

Marginal note:Notice of motion

74 The notice of motion shall set out

• (a) the precise relief sought on the application;

• (b) the grounds on which the applicant relies;

• (c) the right or freedom alleged to be infringed or denied; and

• (d) the nature of the evidence sought to be adduced on the application.

Marginal note:Hearing

75 The hearing of the application shall be conducted as a voir dire whether it is heard before or after the commencement of the trial.

Marginal note:Timely notice

76 Nothing in this Part shall be interpreted as derogating from the right of the accused to make an application at any point in the trial, but the failure to give timely notice for such an application may be taken into account by the judge in determining

• (a) whether to hear the application forthwith or to adjourn the trial to hear it; and

• (b) on what terms the judge will hear the application.

PART 14Pre-trial Conferences

Marginal note:Pre-trial conference

• 77 (1) Where an accused is to be tried before a jury, a pre-trial conference shall be held in accordance with subsection 625.1(2) of the Code at the time, on the date, in the place and in the manner that a judge directs, or on such further dates and at such further times as may be ordered by the judge who presides at the pre-trial conference.

• (2) A judge may direct that a pre-trial conference must be held in any non-jury case.

Marginal note:Purpose of pre-trial conference

78 The purpose of a pre-trial conference is to consider such matters as will promote a fair and expeditious trial or other resolution of the case.

Marginal note:Appearance at pre-trial conference

79 The following shall be present at a pre-trial conference:

• (a) the prosecutor, fully briefed in respect of the issues to be discussed at the pre-trial conference; and

• (b) counsel for the accused, fully briefed in respect of the issues to be discussed at the pre-trial conference or, where the accused is not represented by a solicitor, the accused.

Marginal note:Pre-trial conference report

• 80 (1) Before the pre-trial conference, the prosecutor and counsel for the accused shall jointly prepare a pre-trial conference report in Form 6 of the schedule to be presented to the pre-trial conference judge.

• (2) Where the accused is unrepresented, the prosecutor shall complete the pre-trial conference report in Form 6 of the schedule indicating in it what he or she anticipates the issues will be at trial.

Marginal note:Informal meeting

81 Unless otherwise ordered by the pre-trial conference judge, a pre-trial conference shall be an informal meeting conducted in private chambers at which a full and free discussion of the issues raised may occur without prejudice to the rights of the parties in any proceedings taking place after the conference.

Marginal note:Where accused appears in person

82 Where the accused is unrepresented or appears in person at the pre-trial conference, the conference shall be conducted in chambers with the Clerk and court reporter in attendance.

Marginal note:Use of admissions at trial

83 No admissions made by an accused or counsel for an accused at the pre-trial conference may be used against the accused at the trial unless the admissions are reduced to writing and signed by the accused or his or her counsel.

Marginal note:Anticipated evidence

84 At the pre-trial conference, the prosecutor shall give a synopsis of the anticipated evidence at the trial and any legal issues arising from that evidence.

Marginal note:Disclosure by defence

• 85 (1) While the accused is not required to make disclosure of its case, in a case where the accused intends to call evidence, it is expected that sufficient information will be disclosed for the prosecutor to understand what the substance of the defence case will be.

• (2) Without limiting the generality of subrule (1), the accused is expected to disclose particulars respecting the following:

  • (a) an alibi defence, including the names of any witnesses to the alibi, if not previously disclosed;

  • (b) a defence of not criminally responsible on account of mental disorder; and

  • (c) an expert report or anticipated expert evidence relating to an issue in the trial.

Marginal note:Information judge may require

86 Without restricting the generality of these Rules, the pre-trial conference judge may inquire as to any of the following:

• (a) the extent of disclosure made by the prosecutor and any further requests for disclosure by an accused;

• (b) the nature and particulars of any application to be made either at the outset of the trial before the selection of the jury or, in the absence of the jury, after the jury has been sworn;

• (c) the possibility of resolution of any or all issues in the proceeding, including the possible disposition of any or all counts contained in the indictment whether by plea of guilty or otherwise;

• (d) the simplification of those issues that remain to be contested at trial;

• (e) the possibility of obtaining admissions and agreements so as to facilitate an expeditious, fair and just determination of the proceeding;

• (f) the estimated duration of the trial;

• (g) the necessity for interpretation services for the trial; and

• (h) any other matter that may assist in promoting a fair, just and expeditious trial.

Marginal note:Direction of judge respecting application

87 The pre-trial conference judge may direct that any application

• (a) be made in writing;

• (b) be heard at such time before the date fixed for trial as the judge considers appropriate;

• (c) be heard at the outset of the trial; or

• (d) be heard in the absence of the jury after it has been sworn.

Marginal note:Endorsement on indictment

88 The pre-trial conference judge, on completion of the conference, shall endorse the indictment or a true copy of the indictment as to the date the pre-trial conference was held.

Marginal note:On completion of pre-trial conference

• 89 (1) The pre-trial conference judge, on completion of the conference, may

  • (a) complete a memorandum as to the discussions held and the results of the conference, and a copy of any such memorandum shall be placed on the court file and given to the prosecutor and counsel for the accused or the accused if he or she is acting personally; or

  • (b) endorse a copy of the pre-trial conference report submitted by the parties if the report accurately reflects the substance and outcome of the conference.

• (2) The contents of a memorandum or pre-trial conference report shall not be published or broadcast except by leave of the pre-trial conference judge.

Marginal note:Other conferences

• 90 (1) Nothing in this Part shall be interpreted so as to preclude the Court from conducting other informal pre-trial conferences, in addition to the conference required by subsection 625.1(2) of the Code, on such terms as the judge considers fit.

• (2) The accused or the prosecutor may request that a further pre-trial conference be held.

PART 15Challenges for Cause

Marginal note:Challenge for general lack of indifference

91 Where the accused or the prosecutor seeks, pursuant to paragraph 638(1)(b) of the Code, to challenge for cause every member of a jury panel on the basis of a general lack of indifference, the applicant shall file and serve a notice of motion in Form 1 of the schedule not less than seven days before the date fixed for selection of a jury for the trial.

Marginal note:Application

• 92 (1) The application must be supported by an affidavit of or on behalf of the applicant setting out with particularity the grounds for the challenge and the proposed questions to be put to each prospective juror.

• (2) The application shall be heard by the trial judge in the absence of the jury panel.

Marginal note:Questions to members of jury panel

• 93 (1) If the application is granted, the judge shall specify the form of each question to be put to each prospective juror and who shall ask the questions.

• (2) Each member of the jury panel shall be questioned in the presence of the accused and the triers but in the absence of the remainder of the members of the jury panel, who shall be kept in a separate room.

• (3) The trial judge may, in his or her discretion, permit counsel to make submissions to the triers.

PART 16Extraordinary Remedies

Marginal note:Orders available

• 94 (1) The Court may make an order in the nature of mandamus, prohibition, certiorari, habeas corpus or quo warranto on application by notice of motion in Form 1 of the schedule.

• (2) Where an order referred to in subrule (1) is made, a writ of mandamus, prohibition, certiorari, habeas corpus or quo warranto need not be issued, but all necessary provisions must be included in the judgment or order.

Marginal note:Service

• 95 (1) The notice of motion referred to in rule 94 shall be served on every person who appears to be interested or likely to be affected by the proceeding.

• (2) The Court may require that the notice of motion be served on any person not previously served.

• (3) Where an order is sought to quash a conviction, order, warrant or inquisition, the notice of motion shall be served not less than seven days before the return date of the motion on

  • (a) the office of the prosecutor having carriage of the proceeding; and

  • (b) the justice or justices who made the conviction or order or issued the warrant or the coroner who made the inquisition.

• (4) Where a judge of the Territorial Court must be served, it is sufficient to serve the Clerk or a deputy clerk of the Territorial Court.

• (5) Where a justice or a coroner must be served, it is sufficient to serve the administrative officer of the office to which the justice or coroner belongs.

• (6) Any person not served with the notice of motion may show that he or she is affected by the proceeding and, where the Court is satisfied he or she is so affected, the person may be permitted to take part in the proceeding as though served.

Marginal note:Application - certiorari

96 An application for an order in the nature of certiorari shall be filed and served within six months after the conviction, order, warrant or inquisition to which it relates.

Marginal note:Endorsement on application

• 97 (1) A notice in the following form, addressed to the justice or justices, coroner, administrative officer or Clerk, as the case may be, must be endorsed on a notice of motion requesting an order in the nature of certiorari:

  “You are hereby required forthwith after service of this notice to return to the Clerk of the Supreme Court at (community) the conviction (or order or warrant or inquisition) to which this notice refers and the information, evidence and exhibits filed, if any, together with this notice.

  Date:

  To:

  

  Solicitor for the Applicant”

• (2) A copy of rule 98 must appear on or be annexed to the notice of motion served on the justice or justices, coroner, administrative officer or Clerk from whom the return is required.

• (3) All things required by subrule (1) to be returned to the Clerk shall, for the purposes of the application for an order in the nature of certiorari, be deemed to be part of the record.

Marginal note:Return of evidence and exhibits

• 98 (1) On receiving a notice of motion endorsed in accordance with subrule 97(1), the justice or justices, coroner, administrative officer or clerk shall return forthwith to the Clerk the conviction, order, warrant or inquisition, as the case may be, together with the information, the evidence and exhibits filed, if any, and the notice served on the justice or justices, coroner, administrative officer or Clerk with a certificate endorsed in the following form:

  “Pursuant to the accompanying notice I hereby return to the Honourable Supreme Court the following papers and documents:

  • (a) the conviction — or order or warrant or inquisition —;

  • (b) the information and the warrant issued on the information; and

  • (c) the evidence taken at the hearing and all exhibits filed.

  And I hereby certify to the Honourable Supreme Court that I have enclosed in this return all the papers and documents in my custody and power relating to the matter referred to in the notice of motion.”

• (2) The certificate required by subrule (1) has the same effect as a return to a writ of certiorari.

• (3) Where a record of the proceeding has been transmitted to the Clerk as required by law, other than as required by subrule (1), the Clerk shall, in lieu of the certificate set out in subrule (1), certify to the fact and the date of the transmission.

• (4) Where the material referred to in subrule (1) or the record of the proceeding referred to in subrule (3) has not been received by the Clerk before the application is heard, the Clerk shall prepare a certificate of the fact.

• (5) The Court may dispense with the return of the evidence or exhibits or any part of them.

Marginal note:Ex parte application

99 Notwithstanding rules 95 to 98, the Court, on the ex parte application of the prosecutor, may quash a conviction or warrant made without lawful authority.

Marginal note:Mandamus

100 No order in the nature of mandamus may be granted unless at the time of application an affidavit is produced in which some person deposes on oath that the application is made at his or her instance as prosecutor, and the name of that person must appear in the order as the person at whose instance it is made.

Marginal note:No action against person obeying order

101 No action or proceeding may be commenced or prosecuted against any person in respect of anything done in obedience to an order in the nature of mandamus issued by the Court or any judge.

Marginal note:Time in which duty must be performed

102 In an order in the nature of mandamus, the Court may compel a defendant or respondent to perform the duty in question

• (a) either forthwith or on the expiration of such time as the Court specifies; and

• (b) on such terms as the Court may specify.

Marginal note:Application - habeas corpus

• 103 (1) An application for an order in the nature of habeas corpus shall be served not less than three days before the return date of the application on

  • (a) the authority responsible for the place of detention; and

  • (b) the office of the Attorney General responsible for the prosecution or conviction, as the case may be.

• (2) A copy of rule 104 shall appear on or be annexed to the application.

Marginal note:Return to the Court

104 The authority responsible for the place of detention shall, within 24 hours after receiving an application under rule 103, forward to the Clerk a copy of all causes of the prisoner’s detention.

Marginal note:Order before return made under rule 104

• 105 (1) On the argument of an application for an order in the nature of habeas corpus, the Court may, if the Court considers it just, direct an order to be drawn up for the prisoner’s discharge without waiting for the return of the information required by rule 104.

• (2) An order made under subrule (1) is a sufficient warrant for any jailer, peace officer or other authorized person for the prisoner’s discharge.

Marginal note:Ex parte order

106 Where a judge considers it necessary, the judge, on an application made ex parte, may grant an order for the immediate issue of an order in the nature of habeas corpus.

Marginal note:Application - prohibition

107 An application for an order in the nature of prohibition shall not operate as a stay of the proceedings sought to be prohibited except by order of a judge.

PART 17Summary Conviction Appeals

Marginal note:Definitions

108 The definitions in this section apply in this Part, unless the context in these Rules requires otherwise.

adjudication

adjudication includes

• (a) in an appeal under subparagraph 813(a)(i) or (ii) of the Code, a conviction or order made against or a sentence passed against a defendant;

• (b) in an appeal under subparagraph 813(b)(i) or (ii) of the Code, an order that stays proceedings on or dismisses an information or a sentence passed against a defendant;

• (c) in an appeal under subparagraph 813(a)(iii) or (b)(iii) of the Code, a verdict; and

• (d) in an appeal under subsection 830(1) of the Code, a conviction, judgment or verdict of acquittal or other final order or determination of a summary conviction court. (décision)

appeal

appeal means an appeal under Part XXVII of the Code from or against an adjudication in a proceeding before a summary conviction court; (appel)

appeal court

appeal court means the Supreme Court of the Northwest Territories; (Cour d’appel)

appellant

appellant includes

• (a) in an appeal under paragraph 813(a) of the Code, the defendant;

• (b) in an appeal under paragraph 813(b) of the Code, the informant, the Attorney General or the Attorney General’s agent; and

• (c) in an appeal under subsection 830(1) of the Code, the person who has filed the appeal. (appelant)

trial court

trial court means the summary conviction court from or against whose adjudication an appeal is being taken. (tribunal de première instance)

Marginal note:Application of Part

109 This Part applies to all appeals, including appeals from summary conviction proceedings pursuant to the statutes of the Northwest Territories, except as otherwise provided by the Code, any other federal Act or any regulation made under the Code or any other such Act.

Marginal note:Time for filing notice of appeal

• 110 (1) An appellant shall give notice of appeal

  • (a) where the appeal is from a conviction or against sentence or both, within 30 days after the day on which the sentence was passed; or

  • (b) in any other case, within 30 days after the day on which the adjudication under appeal was made.

• (2) The appeal court or a judge of the appeal court may extend the time within which notice of appeal may be given.

• (3) An application to extend time shall be made on notice to the respondent.

Marginal note:Contents of notice of appeal

• 111 (1) A notice of appeal must be dated and signed by the appellant or the solicitor for the appellant and filed with the Clerk.

• (2) The notice of appeal must set out the following:

  • (a) the trial court that made the conviction or order appealed from or passed the sentence appealed against;

  • (b) the conviction or order appealed from or the sentence appealed against, and the date of the conviction, order or sentence;

  • (c) the grounds on which the appeal is based;

  • (d) the nature of the order or other relief the appellant seeks;

  • (e) where the appellant is a person other than the prosecutor, a statement indicating whether or not the appellant desires to appear in person or by counsel on the hearing of the appeal; and

  • (f) the appellant’s address for service in the Northwest Territories.

• (3) Where the prosecutor or informant appeals, the notice of appeal must be in Form 7 of the schedule.

• (4) Where the accused appeals, the notice of appeal must be in Form 8 of the schedule.

• (5) Notwithstanding subrules (2) and (4), where the appeal is commenced by the accused personally, the notice of appeal may be in Form 9 of the schedule, or in such other form as the court may allow.

Marginal note:Manner of service

• 112 (1) Where the accused appeals, the notice of appeal shall be served, within the time limited by or under rule 110, on the respondent by mailing or delivering a copy of the notice of appeal to the office of the prosecutor who had carriage of the summary conviction proceeding.

• (2) Where the prosecutor or informant appeals, the notice of appeal shall be served, within the time limited by or under rule 110, on the accused personally, or on such other person or in such manner as a judge may direct, and proof of service shall be filed with the Clerk not later than 10 days after the last day for service of the notice of appeal.

Marginal note:Compliance with section 817 of the Code

113 Where an informant who does not represent or act on behalf of the Attorney General appeals, the appellant shall, forthwith after serving the notice of appeal, take steps to appear before a justice, on notice to the respondent, so as to comply with subsection 817(1) of the Code.

Marginal note:Compliance with section 821 of the Code

• 114 (1) The Clerk shall, forthwith after the filing of the notice of appeal, comply with subsection 821(1) of the Code by delivering a copy of the notice of appeal or sending a copy of it by prepaid mail to the trial court.

• (2) The trial court shall, within 10 days after receipt of the notice of appeal, transmit to the Clerk the material referred to in subsection 821(1) of the Code.

Marginal note:Transcript of evidence

• 115 (1) Where the evidence before the trial court has been taken by a stenographer or by a sound recording apparatus, the appellant shall cause a copy of the transcript of the evidence to be furnished to the appeal court and the respondent for use on the appeal.

• (2) The provision of a transcript may be waived by order of the appeal court.

• (3) Notwithstanding subrules (1) and (2), where a transcript of evidence cannot be furnished, the appellant shall file, with the notice of appeal, a certificate to that effect signed by the court reporter assigned to transcribe the evidence or issued by the trial court appealed from.

Marginal note:Contents of transcript

• 116 (1) In preparing a transcript of evidence that has been ordered for the purposes of appeal, the court reporter shall include the reasons for judgment or sentence.

• (2) Where the appeal is from sentence only, the appellant need not cause a copy of the transcript of the evidence to be furnished to the appeal court unless the appeal court otherwise orders.

• (3) On application, a judge may give special directions as to the omission of part of the transcript.

• (4) In an appeal where the facts are not in dispute, an agreed statement of facts may take the place of the transcript of evidence and the appellant need only file and serve a transcript of the reasons for judgment and sentence.

Marginal note:Time and place of appeal

• 117 (1) No time or place for the hearing of the appeal need be stated in the notice of appeal.

• (2) When the appeal court has received the material required to be transmitted by the trial court pursuant to subsection 821(1) of the Code and a transcript of the evidence or when four months has elapsed since a notice of appeal was filed, whichever first occurs, the Clerk shall enter the appeal on a general criminal list to be spoken to.

• (3) The general criminal list shall be called by a judge in chambers at a time and place specified in advance by the appeal court.

• (4) Counsel for each party, or their agents, shall appear at the time and place specified by the appeal court under subrule (3) and shall be fully instructed so as to speak to the progress of the appeal.

• (5) Where counsel for each party concur in a written request, an appeal may be set for hearing by the Clerk in accordance with the usual practice of the appeal court.

• (6) At any time after four months from the day on which a notice of appeal was filed, the appeal court may, on the application of a party or on its own motion, dismiss the appeal for want of prosecution.

Marginal note:Factum of appellant

118 The appellant shall, not less than 14 days before the day fixed for the hearing of the appeal, file with the Clerk and serve on the respondent a factum containing the following:

• (a) a succinct outline of the argument the appellant intends to make with particular reference to the evidence to be discussed in relation to the grounds of appeal;

• (b) a concise statement of the principles of law that are relied on;

• (c) a copy of relevant statutory provisions and case authorities; and

• (d) the relief or order sought.

Marginal note:Factum of respondent

119 The respondent shall, not less than seven days before the date set for the hearing of the appeal, file with the Clerk and serve on the appellant a factum containing, on behalf of the respondent, the succinct outline of the argument, statements and copies referred to in subrules 118(a) to (d).

Marginal note:Where party does not wish to appear

120 A party who does not wish to be present on the hearing of the appeal, either in person or by counsel, shall file with the appeal court, before the day fixed for the hearing, a document

• (a) stating that he or she does not wish to be present on the hearing; and

• (b) setting out his or her argument on appeal.

Marginal note:Failure to appear, file factum

• 121 (1) The appeal court may dismiss an appeal for want of prosecution where the appellant fails

  • (a) to appear personally or by counsel on the day fixed for the hearing; or

  • (b) to file a factum.

• (2) Where a respondent fails to file a factum or to appear personally or by counsel on the day fixed for the hearing, the appeal court may proceed with the appeal in the absence of the respondent.

Marginal note:Abandoning appeal

• 122 (1) An appellant who wishes to abandon the appeal shall forthwith file with the appeal court a notice of abandonment in Form 2 of the schedule that is

  • (a) signed by the solicitor of record for the appellant; or

  • (b) signed by the appellant personally, and

    • (i) accompanied by an affidavit of execution verifying the signature, or

    • (ii) witnessed by an officer of the institution in which the appellant may be confined.

• (2) On the filing of a notice of abandonment, the Clerk shall forthwith cause a copy of the notice to be delivered to the respondent by prepaid mail at the address for service for the respondent that is on file with the appeal court or in such other manner as a judge may order.

• (3) On compliance with subrules (1) and (2), the appeal court may dismiss the appeal as an abandoned appeal without the attendance of the parties or their counsel.

Marginal note:Application for trial de novo

• 123 (1) An application under subsection 822(4) of the Code for a trial de novo shall be made by notice of motion in Form 1 of the schedule before a date for the hearing of the appeal has been fixed.

• (2) Not less than seven days notice of an application referred to in subrule (1) shall be given to the opposite party in the manner specified in rule 112.

• (3) Where an appellant entered a guilty plea before the trial court and is appealing the conviction, the appeal court may direct a hearing on the preliminary point as to whether or not the appellant may withdraw the guilty plea, and the court hearing that point may, if it decides in favour of the appellant, give such directions as it considers just.

Marginal note:Delivery of results of appeal to trial court

124 Immediately after the disposition of an appeal, the Clerk shall cause to be delivered to the trial court the results of the appeal including any written reasons or endorsements made by the judge.

Marginal note:Prisoner appeals

• 125 (1) The Clerk shall provide a sufficient number of copies of this Part to each warden of a correctional centre in the Northwest Territories and each warden shall keep the copies provided and furnish a copy of this Part to any inmate of the correctional centre who asks for one.

• (2) Where notice of appeal is filed by an inmate of a correctional centre in the Northwest Territories personally, the Clerk shall immediately forward a copy of the notice to the director of the local legal aid programme and inquire as to whether counsel has been appointed on behalf of the appellant for the purpose of presenting an appeal.

• (3) After the expiry of four months from the day the notice of appeal was filed by an inmate in a correctional centre, if no further steps have been taken to prepare the appeal for hearing, the Clerk shall write to the appellant, at the address given in the notice of appeal, directing the appellant to advise in writing, within a specified period, whether he or she wishes to pursue the appeal.

• (4) Where the Clerk does not receive a response from an appellant under subrule (3) within the period specified or receives a response advising that the appellant does not wish to pursue the appeal, the appeal court may dismiss the appeal as an abandoned appeal.

• (5) On the determination of a hearing date for an appeal filed by an inmate of a correctional centre personally, the Clerk shall send notice of the date in writing to the appellant at the address given in the notice of appeal.

Marginal note:Costs

126 The costs of all proceedings on a summary conviction appeal, whether for or against the Crown as appellant or respondent, are in the discretion of the appeal court.

PART 18Change of Representation

Marginal note:Notice of change

127 A solicitor who assumes the representation of an accused who was previously either unrepresented or represented by another solicitor shall immediately file a notice to that effect with the Court and serve a copy of the notice on the prosecutor.

Marginal note:Removal of solicitor from record

• 128 (1) A solicitor of record for an accused shall act as and remain the solicitor for his or her client until an order removing the solicitor from the record has been made by a judge or a new solicitor has filed a notice pursuant to rule 127.

• (2) An order removing a solicitor from the record may be made on the application of the solicitor on notice to his or her client and to the prosecutor.

• (3) Notice on the client of an application under subrule (2) may be served by mail addressed to the client at his or her last known address.

• (4) A copy of the order removing a solicitor from the record shall be served by the solicitor on the client by mail addressed to the client at his or her last known address.

• (5) This rule applies whether the solicitor decides to cease acting on behalf of a client or the client terminates the solicitor’s retainer.

PART 19Regulation of Conduct in the Court Room

Marginal note:Photographs, recording, broadcasting in court room

129 The taking of photographs in the court room during the progress of the judicial proceedings, the private recording of a proceeding by way of any recording or transmission device and the radio or television broadcasting of judicial proceedings from the court room is not permitted, except by authority of the Chief Justice.

Marginal note:R.C.M.P. dress

130 Unless otherwise directed by the presiding judge,

• (a) a member of the R.C.M.P. attending a court proceeding and sitting at counsel table with the prosecutor shall be dressed in formal red serge uniform and without a sidearm; and

• (b) a member of the R.C.M.P. attending as a witness shall be dressed in formal red serge uniform or a business suit and attend without a sidearm.

PART 20Time

Marginal note:Reference to time

131 Any reference to time in these Rules must be interpreted in accordance with section 27 of the Interpretation Act, chapter I-21 of the Revised Statutes of Canada, 1985.

Marginal note:Enlarging, abridging time

• 132 (1) The Court may by order enlarge or abridge the time appointed by these Rules for the doing of any act or taking of any proceeding on such terms as the Court considers just.

• (2) An application for an order enlarging the time appointed by a Rule may be made before or after the expiration of the time appointed.

• (3) The time appointed by these Rules for serving, filing or delivering a document may be enlarged or abridged by consent of the parties in writing endorsed on the relevant document, without an application to the Court, or in such other form as a judge may direct.

PART 21Non-compliance with the Rules

Marginal note:Failure to comply with Rules

• 133 (1) A failure to comply with these Rules is an irregularity and does not in itself render a proceeding or an act, document or order in a proceeding a nullity.

• (2) Where such a failure occurs, the Court,

  • (a) may grant all necessary amendments or other relief, on such terms as the Court considers just, to secure the just determination of the real matters in dispute; or

  • (b) only where and as the Court considers necessary in the interests of justice, may set aside the proceeding or act, document or order in the proceeding in whole or in part.

• (3) An application to set aside any proceeding or act for irregularity must be made within a reasonable time.

Marginal note:Dispensing with compliance of rule

134 The Court may, where it considers it necessary in the interests of justice, dispense with compliance with any rule at any time.

Marginal note:Correction of mistakes, etc.

135 A clerical mistake, or an error arising from oversight or omission, in a judgment, order or other part of a record may be corrected by the Court at any time and after such notice as the Court may order.

PART 22Exhibits

Marginal note:Marking of exhibits

• 136 (1) An exhibit filed on a hearing or trial must be dated, numbered and marked to indicate the parties involved, whose property it is and by whom it is filed.

• (2) The Clerk shall enter in a procedure book a list of each exhibit, briefly describing the exhibit and stating by whom it is filed.

Marginal note:Return of exhibit

• 137 (1) An exhibit at a trial may be delivered to the party whose property it is

  • (a) at any time after the trial, on the consent of the opposite party; or

  • (b) at any time after the time for appeal has expired if no notice of appeal has been given, by order given at the end of the trial in court or on notice to the opposite party.

• (2) Where an application for the return of an exhibit has not been made within two years after the last day of trial or, if an appeal has been taken, within two years after the conclusion of the appeal, the Clerk may serve notice on the prosecutor and solicitor for the accused stating that, unless such an application is made within three months after the notice is sent, the Clerk will destroy or otherwise dispose of the exhibit.

• (3) Where it is made to appear to the Court that service of a notice under subrule (2) cannot be effected, the Court may order substitutional service or may dispense with service.

• (4) Unless an application is made for the return of an exhibit in accordance with subrule (2), the Clerk may, on an ex parte basis, apply for an order and a judge may make an order requiring the Clerk to destroy or otherwise dispose of the exhibit.

• (5) The Clerk shall destroy or otherwise dispose of an exhibit in accordance with an order made under subrule (4).

PART 23Practice Directions

Marginal note:Practice directions

138 The judges of the Court, acting as a body, may from time to time issue practice directions not inconsistent with these Rules, and such practice directions shall apply to the same extent as these Rules.

PART 24Transitional, Repeal and Coming into Force

Marginal note:Transitional

139 These Rules apply to proceedings commenced before these Rules come into force.

Marginal note:Repeal

140 The following rules are hereby repealed:

• (a) Rules as to Cases Stated under Section 762 of the Criminal Code and Rules Pursuant to Section 438 of the Criminal Code with Respect to Mandamus, Certiorari, Habeas Corpus and Prohibition, registered as instrument numbered SI/74-119;

• (b) Summary Conviction Appeal Rules of the Supreme Court of the Northwest Territories, registered as instrument numbered SOR/78-200; and

• (c) Northwest Territories Supreme Court Rules Respecting Pre-Trial Conferences, registered as instrument numbered SI/86-86.

Marginal note:Coming into force

141 These Rules come into force on July 1, 1998.

SCHEDULE(Rule 8)

FORM 1(Rule 18, subrules 32(1), 38(1), 42(1), 50(1), 58(1) and 73(1), rule 91 and subrules 94(1) and 123(1))

Court File No.

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN:

HER MAJESTY THE QUEEN

(Indicate whether Applicant or Respondent)

- and -

(Accused’s full name as it appears on the information or indictment)

(Indicate whether Applicant or Respondent)

Notice of Motion

TAKE NOTICE that an application will be brought on (month, day, year) at a.m. (or p.m.) at (specify address of court house), for an order granting (set out relief sought).

THE GROUNDS FOR THIS APPLICATION ARE:

• 1 That

• 2 That

• 3 Such further and other grounds as counsel may advise and this Honourable Court may permit.

IN SUPPORT OF THIS APPLICATION, THE APPLICANT RELIES ON THE FOLLOWING:

• 1 (Set out documents such as transcripts, etc., on which the Applicant relies)

THE RELIEF SOUGHT IS:

• 1 An Order allowing the application and granting (indicate particular relief sought).

DATED at , on (month, day, year), .

(Signature of Applicant or counsel)

Name, address, telephone and

telecopier telephone numbers of

Applicant or counsel:

FORM 2(Subrules 30(1) and 122(1))

Court File No.

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN:

HER MAJESTY THE QUEEN

(Indicate whether Applicant, Appellant or Respondent)

- and -

(Accused’s full name as it appears on the information or indictment)

(Indicate whether Applicant, Appellant or Respondent)

Notice of Abandonment

TAKE NOTICE that the Applicant (or Appellant) hereby wholly abandons his (or her or its) application for (or appeal against):

(Indicate

• (a) the nature of the order and relief sought, in the case of an application;

• (b) the conviction, order or sentence, in the case of an appeal instituted under subparagraph 813(a)(i) or (ii) of the Criminal Code;

• (c) the order staying proceedings on or dismissing an information or against sentence, in the case of an appeal instituted under subparagraph 813(b)(i) or (ii) of the Criminal Code;

• (d) the verdict, in the case of an appeal instituted under subparagraph 813(a)(iii) or (b)(iii) of the Criminal Code; or

• (e) the conviction, judgment or verdict of acquittal or other final order or determination in the case of an appeal instituted under paragraph 830(1) of the Criminal Code.)

DATED at , on (month, day, year).

(Signature of Applicant, Appellant or counsel)

Name and address of Applicant, Appellant

or counsel:

• Note: 

  An affidavit of execution is required by subrules 30(1) and 122(1) of the Criminal Procedure Rules of the Supreme Court of the Northwest Territories where applicant or appellant signs notice personally.

FORM 3(Rule 35)

Court File No.

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

- and -

(Accused’s full name as it appears on information or indictment)

Applicant

BEFORE THE HONOURABLE IN CHAMBERS

) ) ) ) )

Yellowknife, Northwest Territories, this (month, day, year)

Order of Release

UPON the application of the Applicant and upon hearing Counsel for the Applicant and Counsel for the Respondent;

For offences NOT mentioned in section 522 of the Criminal Code, add:

AND IT APPEARING THAT the Applicant was detained in custody by the Order of Honour Judge in the Territorial Court of the Northwest Territories, at (place of detention), on (month, day, year);

(Set out, in full, the wording of each charge as it appears in the information or indictment)

For offences mentioned in section 522 of the Criminal Code, add:

AND IT APPEARING THAT the Applicant is not required to be detained in custody in respect of any other matter;

IT IS ORDERED THAT the Application be allowed, the Order previously made by Honour Judge be vacated and the Applicant be released on his (or her):

Use the most appropriate one of the following 12 paragraphs:

• 1 GIVING AN UNDERTAKING WITHOUT CONDITIONS.

• 2 GIVING AN UNDERTAKING WITH THE FOLLOWING CONDITIONS:

  • (a) 

  • (b) (Set out applicable conditions mentioned in subsections 515(4) to (4.2) of the Criminal Code)

  • (c) 

• 3 ENTERING INTO A RECOGNIZANCE, without sureties, in the amount of $ , but withoutdeposit of money or other valuable security.

• 4 ENTERING INTO A RECOGNIZANCE, without sureties, in the amount of $ , but without deposit of money or other valuable security, with the following conditions:

  • (a) 

  • (b) (Set out applicable conditions mentioned in subsections 515(4) to (4.2) of the Code)

  • (c) 

• 5 ENTERING INTO A RECOGNIZANCE, with surety (or sureties), in the amount of $ but without deposit of money or other valuable security.

• 6 ENTERING INTO A RECOGNIZANCE, with surety (or sureties), in the amount of $ but without deposit of money or other valuable security, with the following conditions:

  • (a) 

  • (b) (Set out applicable conditions mentioned in subsections 515(4) to (4.2) of the Criminal Code)

  • (c) 

• 7 The prosecutor having consented, ENTERING INTO A RECOGNIZANCE, without sureties, in the amount of $ on the Applicant depositing that sum of money or other valuable security with the Clerk of the Supreme Court.

• 8 The prosecutor having consented, ENTERING INTO A RECOGNIZANCE, without sureties, in the amount of $ on the Applicant depositing that sum of money or other valuable security with the Clerk of the Supreme Court, with the following conditions:

  • (a) 

  • (b) (Set out applicable conditions mentioned in subsections 515(4) to (4.2) of the Criminal Code)

  • (c) 

• 9 Being not ordinarily resident in the Northwest Territories or not ordinarily residing within two hundred kilometres of the place in which the Applicant is in custody, ENTERING INTO A RECOGNIZANCE, without sureties, in the amount of $ on the Applicant depositing that sum of money or other valuable security with the Clerk of the Supreme Court.

• 10 Being not ordinarily resident in the Northwest Territories or not ordinarily residing within two hundred kilometres of the place in which the Applicant is in custody, ENTERING INTO A RECOGNIZANCE, with surety (or sureties), in the amount of $ on the Applicant depositing that sum of money or other valuable security with the Clerk of the Supreme Court.

• 11 Being not ordinarily resident in the Northwest Territories or not ordinarily residing within two hundred kilometres of the place in which the Applicant is in custody, ENTERING INTO A RECOGNIZANCE, without sureties, in the amount of $ on the Applicant depositing that sum of money or other valuable security with the Clerk of the Supreme Court, with the following conditions:

  • (a) 

  • (b) (Set out applicable conditions mentioned in subsections 515(4) to (4.2) of the Criminal Code)

  • (c) 

• 12 Being not ordinarily resident in the Northwest Territories or not ordinarily residing within two hundred kilometres of the place in which the Applicant is in custody, ENTERING INTO A RECOGNIZANCE, with surety (or sureties), in the amount of $ on the Applicant depositing that sum of money or other valuable security with the Clerk of the Supreme Court, with the following conditions:

  • (a) 

  • (b) (Set out applicable conditions mentioned in subsections 515(4) to (4.2) of the Criminal Code)

  • (c) 

AND IT IS FURTHER ORDERED THAT:

• 1 The undertaking may be given by the Applicant to (or recognizance may be entered into by the Applicant before) any Justice of the Peace in and for the Northwest Territories or the Clerk of the Supreme Court;

• 2 Any Justice of the Peace in and for the Northwest Territories may order that the Applicant be brought before the Justice for the purpose of giving the undertaking (or entering into the recognizance) and being released from custody, and this order shall be sufficient authority to any person having the custody of the Applicant in the Northwest Territories to have the Applicant brought before a Justice of the Peace for that purpose;

• 3 If the Applicant is brought before a Justice of the Peace and gives the undertaking (or enters into the recognizance) as set out in this order, the person having custody of the Applicant shall release him (or her) forthwith.

Clerk of the Supreme Court

APPROVED AS TO FORM AND CONTENT:

AGENT OF THE ATTORNEY GENERAL

ENTERED this day of , 19

Clerk of the Supreme Court

• Note: 

  This form is a model standard form of order that can be used as the model for actual orders. Only the appropriate paragraphs from the model standard form should be incorporated into the actual order as required.

FORM 4(Subrule 46(c))

Court File No.

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN:

HER MAJESTY THE QUEEN

- and -

(Accused’s full name as it appears on the information or indictment)

BEFORE THE HONOURABLE IN CHAMBERS

) ) ) ) )

Yellowknife, Northwest Territories, this day of , 19

Order for Removal

UPON IT APPEARING THAT (name of accused or witness) is in custody at (name of institution) at (community), (territory or province);

AND UPON IT APPEARING THAT the attendance of (name) is required before the Court of the Northwest Territories on (month)(day), 19 at a.m. (or p.m.), at (community), in the Northwest Territories;

IT IS HEREBY ORDERED THAT the Warden of the (name of institution) surrender (name of prisoner) to the Royal Canadian Mounted Police escort bearing this Order so that (name of prisoner) may be brought under such escort before the (community) Court of the Northwest Territories sitting at , Northwest Territories on (month)(day), 19, at a.m. (or p.m.).

AND IT IS FURTHER ORDERED THAT (name) be kept in custody of the Royal Canadian Mounted Police at (community) and elsewhere in the Northwest Territories as may be necessary until his (or her) attendance in Court is no longer required, at which time he (or she) shall be returned under safe escort by the Royal Canadian Mounted Police to the Warden at (name of institution) in (community), (territory or province), who shall receive him (or her) or as otherwise ordered by the Court.

Clerk of the Supreme Court

ENTERED this day of , 19.

Clerk of the Supreme Court

FORM 5(Rule 67)

Court File No.

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN:

HER MAJESTY THE QUEEN

- and -

(Accused’s full name as it appears on the information or indictment)

Notice of Motion on Constitutional Issue

TAKE NOTICE THAT (name of party) will bring an application on (month, day, year) at a.m. (or p.m.) at (specify address of court house) for an order granting (set out precise relief sought).

THE GROUNDS FOR THIS APPLICATION ARE:

• 1 

• 2 (State concisely each issue to be raised)

• 3 

THE CONSTITUTIONAL PRINCIPLES TO BE ARGUED ARE:

• 1 

• 2 

• 3 

THE STATUTORY PROVISION OR RULES ON WHICH THE APPLICANT RELIES ARE:

• 1 

• 2 

• 3 

IN SUPPORT OF THIS APPLICATION, THE APPLICANT RELIES ON THE FOLLOWING:

• 1 (Briefly describe the documents such as affidavits, transcripts, etc., on which the Applicant relies)

DATED at on (month, day, year).

(Signature of Applicant or counsel)

Name, address, telephone and

telecopier telephone numbers of

Applicant or counsel:

FORM 6(Rule 80)

Court File No.:

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN:

HER MAJESTY THE QUEEN

- and -

(Accused’s full name as it appears on the information or indictment)

Pre-Trial Conference Report

THE POSITIONS AND AGREEMENTS REFLECTED IN THIS REPORT ARE WITHOUT PREJUDICE AND PURELY FOR THE ASSISTANCE OF THE COURT IN THE RESOLUTION OF TRIAL PROBLEMS. THE CONTENTS OF THIS REPORT SHALL NOT BE PUBLISHED OR BROADCAST.

Name of accused:

Charges:

Defence Counsel:

Telephone:

Telecopier:

Crown Counsel:

Telephone:

Telecopier:

Date of alleged offence:

Place of alleged offence:

Date accused charged:

Date indictment filed:

Date of committal:

Date of trial:

Place of trial:

Summary of Crown allegations:

Defence position, if any:

Form of judicial interim release:

Disclosure issues:

Expected mode of trial:

• [ ] Re-election expected

• [ ] Crown consenting (if required)

Pre-trial motions:

Voir dires:

Undisputed issues:

Legal issues:

Number of witnesses: (specify if expert)

• (a) Crown

• (b) Defence

Experts’ reports:

• (a) Crown

• (b) Defence

Length of trial:

Interpretation:

Date:

Crown Counsel

Defence Counsel

FORM 7(Subrule 111(3))

Court File No.

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN:

HER MAJESTY THE QUEEN, on the information and complaint of (name of informant), (Where the appellant is not Her Majesty the Queen then only the name of the informant who is the appellant should be set out)

- and -

(Respondent’s full name)

Notice of Appeal

TAKE NOTICE that the Attorney General of Canada (or, where the Appellant is not the Attorney General of Canada, insert name of the informant) intends to appeal and does hereby appeal from an order dismissing the information of (name of informant) against the Respondent, made by (name of presiding judge or justice) at (place of adjudication) on (date of adjudication).

The information that was dismissed charged the Respondent (state fully offence or offences charged).

(If appeal is from sentence, add:

TAKE NOTICE that the Attorney General of Canada (or, where the appellant is not the Attorney General of Canada, insert name of the informant) intends to appeal and does hereby appeal the sentence passed on the Respondent following a conviction (or convictions) made by (name of presiding judge, magistrate or justice of the peace) at (place of adjudication) on (date of adjudication).

The offence (or offences) of which the Respondent was convicted was (or were) (state fully offence or offences) and the sentence passed by the summary conviction court was (state particulars of sentence) and was passed on (month, day, year).)

The following is the order the Attorney General (or the informant, as the case may be) asks to be made:

(Here set out order sought).

The grounds of appeal are: (set out grounds with particularity).

The address for service of the Attorney General of Canada at Yellowknife is:

Department of Justice

3rd Floor, Joe Tobie Building

P.O. BOX 8

YELLOWKNIFE NT X1A 2N1

(Substitute informant’s address for service where the Attorney General of Canada is not the Appellant.)

DATED (month, day, year).

(Signature of Attorney General or his or her duly authorized agent or, where the Attorney General is not the Appellant, of the informant)

FORM 8(Subrule 111(4))

Court File No.

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN:

(Appellant’s full name)

- and -

HER MAJESTY THE QUEEN

(Where the Respondent is not Her Majesty the Queen, the style of cause should clearly identify the Respondent)

Notice of Appeal

TAKE NOTICE that the Appellant intends to appeal and does hereby appeal from the conviction (or sentence or conviction and sentence) made by (name of presiding judge or justice) at (place of adjudication) on (date of adjudication).

The offence of which the Appellant was convicted was (state fully the offence or offences on which the appellant was convicted).

(Add, if applicable: The sentence of the summary conviction court that convicted the Appellant was (state sentence passed) and was passed on (state date of sentence).)

The following is the order the Appellant asks to be made: (here set out nature of order sought).

The grounds of appeal are: (set out grounds with particularity).

The Appellant does (or does not) wish to appear personally or by counsel and will present his (or her or its) argument or appeal orally (or in writing).

The Appellant’s (add, where applicable: and his (or her or its) counsel’s) address for service in the Northwest Territories is (or are):

Dated at on (month, day, year).

(Signature of Appellant or counsel)

FORM 9(Subrule 111(5))

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN:

(Appellant’s full name and address)

- and -

HER MAJESTY THE QUEEN

Notice of Appeal

(Filed by the Accused personally)

DATE OF CONVICTION:

DATE OF SENTENCE:

OFFENCE:

SENTENCE:

PLACE OF TRIAL:

COURT:

APPEAL IS AGAINST: (state whether appeal is against conviction, sentence or both)

PLACE OF INCARCERATION:

Dated at on (month, day, year).

(Signature)