Applications and Motions Procedure

From Criminal Law Notebook
Jump to: navigation, search

Motions and Applications Generally

All motions are to be made inter partes, with notice to all the interested parties rather than ex parte, without notice to the other parties, "unless there is a compelling need, established by evidence, for an ex parte order."[1]

Applications made by persons against the Federal Crown outside of criminal proceedings will generally be governed by the Crown Liability and Proceedings Act.[2]

  1. Mercier v Nova Scotia (Attorney General), 2012 NSCA 25 (CanLII)
  2. See Crown Liability and Proceedings Act, RSC 1985, c C-50


Notice of Application must set out sufficient particulars to be meaningful. A notice without particulars will not constitute notice at all.[1]

Objections to the admissibility of evidence must be made at or before the evidence is tendered.[2]

  1. R v Kutynec, 1992 CanLII 7751 (ON CA), (1992) 70 CCC (3d) 289 (ONCA) ("if the facts as alleged by the defence in its summary provide no basis for a finding of a Charter infringement... then the trial judge should dismiss the motion without hearing evidence.")
    R v Kovac, 1998 CanLII 14961 (ON SC), [1998] O.J. No. 2347 (Gen. Div.) (“In the adversarial trial system, the court, the accused, and the community are entitled to have two informed and prepared litigants conducting the case…The Crown is entitled to be represented in name and substance”)
  2. R v Phillips, 2003 SKQB 330 (CanLII) at para 9


Any application or motion, be it procedural or substantive, must be made by someone with standing (locus standi).[1]

Standing concerns "the appropriateness of the court’s dealing with the particular issue presented" by the applicant.[2] It includes "the legal entitlement of [the applicant] to invoke the jurisdiction of the Court."[3]

This right of standing can be obtained in one of two ways. The claimant can invoke private interest standing, also known as standing as of right, or claim public interest standing with leave of the court. [4]

Courts have generally given private interest standing to any person who can show that "he has a particular interest or will suffer an injury peculiar to himself if he would sue to enjoin it."[5]

In order to get a prerogative remedy the applicant has been described as needing to be "aggrieved", "affected" or have "sufficient interest". [6]

An aggrieved person is one who "has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something" and does not include a "mere busybody" [7]

Whether standing is granted is in the discretion of the court.[8] This discretion is "liberal and generous".[9] In considering the exercise of discretion, the courts weigh three factors:[10]

  • whether the case raises a serious justiciable issue,
  • whether the party bringing the action has a real stake or a genuine interest in its outcome and whether, having regard to a number of factors, the proposed suit is a reasonable and effective means to bring the case to court

An accused person will generally have standing in relation to applications directly concerning the criminal proceedings.

The principle of natural justice may provide standing. They are engaged "when a party with a discernible interest in the outcome seeks an opportunity to be heard."[11]

  1. E.g. see Canadians for the Abolition of the Seal Hunt et al. v Minister of Fisheries and the Environment [1981] 1 F.C. 733 at para 7 which includes prerogative writs as well as constitutional challenges
  2. Thomas Crowell, Locus Standi: A Commentary on the Law of Standing in Canada (Toronto: Carswell, 1986) at p.3
  3. Saanich Inlet Preservation Society v Cowichan Valley (Regional District), 1983 CanLII 382 (BC CA), [1983] 4 W.W.R. 673 (BCCA) at p.674
  4. 604598 Saskatchewan Ltd. (c.o.b. Great Canadian Superbar) v Saskatchewan (Liquor and Gaming Authority), 1998 CanLII 12308 (SK CA) at para 16, 109
  5. Thorson v A.G. Can. (No. 2) 1975 CanLII 38 (SCC), [1977] 1 SCR 827, at p. 150
  6. Antigonish/Guysborough Federation of Agriculture v Antigonish County (Municipality), 2012 NSSC 352 (CanLII) at para 107
  7. R v Comte, 1990 CanLII 2064 (BC SC) citing Lord Denning
  8. Attorney General of Canada v Downtown Eastside Sex Workers United Against Violent Society and Sheryl Kiselbach, 2012 SCC 45 (CanLII) at para 2
    Antigonish/Guysborough Federation of Agriculture at para 107
  9. Downtown Eastside, supra at para 2
  10. Downtown Eastside, supra at para 2
  11. See L.L.A. v A.B., 1995 CanLII 52 (SCC), [1995] 4 SCR 536 at paras 27, 28
    applied in R v Oleksiuk, 2013 ONSC 5258 (CanLII) at para 32

Filings of Written Argument

A judge or justice may refuse to accept written arguments from a party where a due date has been ordered by the court and counsel do not comply with the due date.[1] The right to be fully heard exists as a right for an "opportunity" to be heard, which does not include a right to extensions of time to submit argument.[2]

The proper procedure where a deadline has been passed or will not be met would be to file a request for extension of time and should include reasons for failing to meet the scheduled deadline.[3]

  1. R v Jeffrey, 2012 SKPC 12 (CanLII) at paras 6 to 11
  2. Jeffrey, ibid.
  3. Jeffrey, ibid.

Voir Dire

Charter Motions

Prerogative Writs

See also: Mandamus, Certiorari, and Prohibition

An application of certiorari challenging a judicial authorization such as a search warrant is a criminal and not civil proceeding.[1]

  1. R v Canadian Broadcasting Corporation, 2006 NLCA 21 (CanLII)

Declaratory Judgments

A declaratory judgement is an order "confirming or denying a legal right of the applicant".[1]

Declaratory judgements are not available where "controversy is not presently existing but merely possible or remote". The dispute should not be "contingent upon the happening of some future event which may never take place". It should not be "academic" or "speculative".[2]

A declaratory order has only the ability to "confirm or deny a legal right" but has no ability to grant consequential relief.[3]

  1. R v Armstrong, 2012 BCCA 242 (CanLII) at para 38 citing Lazar Sarna, The Law of Declaratory Judgments (3rd ed., 2007) at 1
  2. Operation Dismantle v. The Queen, 1985 CanLII 74 (SCC) citing Fager, The Declaratory Judgment Action (1971), at p. 5
    Whynot v. Nova Scotia, (1988), 86 N.S.R.(2d) 50
  3. Wood v Canada (Atlantic Institution), 2014 NBQB 135 (CanLII) at para 33

Re-opening Motions or Applications

A motion, application or appeal that has not been decided on its merits can be re-opened at the discretion of the court. The applicant has a "heavy onus" to show that it is in the "interests of justice" to reopen the matter.[1]

Factors to consider include:[2]

  1. the length of delay between the dismissal and the application for reinstatement, and the adequacy of the explanation offered for that delay;[3]
  2. whether the Appellant contributed to the delay;[4]
  3. whether the Appellant had a bona fide intention to pursue the appeal throughout the proceedings;[5]
  4. whether the initial Order was made in error, or the Court was operating under some misunderstanding of the material facts;[6]
  5. the effect reinstatement would have on public confidence in the administration of justice;[7]
  6. the seriousness of the charges[8]
  7. the merit of the appeal[9]
  1. R v Blaker, 1983 CanLII 308 (BC CA), (1983), 6 CCC (3d) 385 at 392, 393
  2. R v T.L.C., 2012 BCCA 131 (CanLII) at para 26
  3. R v Findlay (1996), 79 BCAC 106, 1996 CanLII 2691 (BC CA), at para 13
  4. R v Blaker at p. 393
  5. R v Clymore, 1999 BCCA 225 (CanLII), 134 CCC (3d) 476 at para 14
  6. R v Henry, 1997 CanLII 3139 (BC CA), (1997), 100 BCAC 183 at para 18
  7. Clymore, supra at para 16
  8. Blaker, supra at p. 392
  9. Blaker, supra at p. 392
    R v Clymore at para 14

Vexatious Litigants

Under the doctrine of abuse of process a judge may declare a party to be a "vexatious litigant".[1] An order against a vexatious litigant can include an order that prohibits the party from making further applications without further leave of the Court.[2]

A judge has inherent jurisdiction to address "vexatious litigants".[3]

  1. Ewanchuk v Canada (Attorney General), 2017 ABQB 237 (CanLII) at para 79 to 88
  2. Ewanchuk, ibid.
  3. R v Grabowski, 2015 ABCA 391 (CanLII)