Ontario Court of Justice Practice Direction:
Section 11(b) Charter Applications

This practice direction is issued pursuant to rule 5 of the Criminal Rules of the Ontario Court of Justice.  It replaces the Provincial Practice Direction regarding Time Limits for Oral Arguments on s.11(b) Charter Applications in Criminal Proceedings (issued July 1, 2019), which is hereby revoked).

The objective of this practice direction is to provide for fair, timely and efficient determination of s. 11(b) Charter applications. This includes hearing the applications at least four months before trial so that, if the application is granted and a stay of proceedings is imposed, the scheduled trial dates may be utilized for other matters.

1. The procedures set out in this practice direction apply to s. 11(b) Charter applications in the Ontario Court of Justice as of November 1, 2023.
2. Unless the Court directs otherwise, section 11(b) applications shall be heard at least four months before trial, to allow the scheduled trial dates to be utilized for other matters should the proceedings be stayed.
3. Section 11(b) applications will be scheduled at the same time the trial is set. To facilitate this procedure:
   1. 1. s. 11(b) applications will be canvassed during judicial pre-trials and the defence (counsel, authorized agent or accused, if self-represented) is required to advise the pre-trial judge if they intend to bring a s. 11(b) application; and
      2. s. 11(b) applications will be canvassed when trial dates are canvassed in the trial scheduling court or in the Trial Coordinator’s office. If the trial date is more than 18 months from the Information sworn date, a s. 11(b) application date will be set unless the defence confirms on the record that they are not bringing a s. 11(b) application.

   This procedure applies, with any necessary modifications, when a trial is adjourned and/or a new trial is being set.

4. The s. 11(b) Notice of Application (Form 1) and any supporting materials must be served and filed at least 30 days in advance of the application hearing date, in accordance with Rule 3.1 of the Criminal Rules of the Ontario Court of Justice.
5. Wherever possible, the s. 11(b) application will be heard by the judge who will preside over the applicant’s trial. However, given that the application and trial are heard months apart, there may be cases where it is necessary for the proper administration of justice for different judges to hear the application and trial.  In such situations, the s. 11(b) application judge is appointed a case management judge under s. 551.1 of the Criminal Code for the purpose of hearing and determining the s. 11(b) application.
6. Unless directed otherwise by the Local Administrative Judge, the judicial pre-trial judge or the presiding judge, s. 11(b) applications shall be scheduled for up to one hour for oral argument, allocated as follows:
   • Applicant – 25 minutes
   • Respondent – 25 minutes
   • Applicant’s reply – 10 minutes.
7. The s. 11(b) application should clearly identify any periods of delay within the case that the party submits should be characterized as attributable to the defence or to “exceptional circumstances”, as defined in R. v. Jordan. The information describing periods of delay must be set out in a chart (or charts) attached to the application setting out the history of the proceeding from the date of charge until the anticipated disposition of the proceeding.

Chief Justice Sharon M. Nicklas
Ontario Court of Justice