Summary Dismissal Applications

From Criminal Law Notebook
This page was last substantively updated or reviewed April 2023. (Rev. # 86315)

General Principles

See also: Applications and Motions Procedure

There is "no absolute right to a voir dire" where a Charter right is claimed to have been violated.[1]

Before dismissing the application the judge must give the applicant notice of the intention and permit an opportunity to make submissions.[2]


Parties may request the trial judge to hold a summary dismissal hearing (sometimes called a "Cody hearing", "Vukelich hearing" or "Haevischer hearing") to determine whether the Court should decline any request to hold a voir dire, including Charter motions.[3]

Certain other provinces have similar powers under civil procedure rules to dismiss applications for lack of merit.[4]

There are certain provinces that have superior court civil procedure rules (CPR) that govern applications including for criminal matters.

Ontario CPR Rule 34.02 permits dismissal of an application, based on materials filed, to be dismissed where there is "no reasonable prospect" of success. This rule promotes efficiency and the correct results.[5] The procedure must be informal or else will defeat the purpose of the power.[6]


The threshold to grant an evidentiary hearing is a "low" one.[7] It is only necessary that the evidentiary hearing "would assist" or "can assist" to determine the "real issue."[8]

A judge may decline to hold an evidentiary hearing into a alleged Charter breach if there is no remedy available.[9] The decision is a discretionary one and is highly contextual.[10]

  1. R v Bains, 2010 BCCA 178 (CanLII), 254 CCC (3d) 170, per D. Smith J, at para 69
    R v Mehan, 2017 BCCA 21 (CanLII), per D. Smith J
  2. Iraheta, ibid.
  3. R v Cody, 2017 SCC 31 (CanLII), [2017] 1 SCR 659, per curiam, at para 38 ("trial judges should use their case management powers to minimize delay. For example, before permitting an application to proceed, a trial judge should consider whether it has a reasonable prospect of success. This may entail asking defence counsel to summarize the evidence it anticipates eliciting in the voir dire and, where that summary reveals no basis upon which the application could succeed, dismissing the application summarily ... ...This screening function applies equally to Crown applications and requests. As a best practice, all counsel — Crown and defence — should take appropriate opportunities to ask trial judges to exercise such discretion.")
    R v Vukelich, 1996 CanLII 1005 (BC CA), [1996] BCJ No 1535; 108 CCC (3d) 193, per McEachern JA, at paras 25 to 26
    see also R v Kapp, 2006 BCCA 277 (CanLII), 271 DLR (4th) 70, per Low JA, appeal dismissed at 2008 SCC 41 (CanLII), per McLachlin CJ and Abella J
    R v Kutynec, 1992 CanLII 7751 (ON CA), 70 CCC (3d) 289, per Finlayson JA at pp. 287-89
  4. R v Sutherland, 2017 BCPC 42 (CanLII), per Gouge J, at para 11
  5. R v Glegg, 2021 ONCA 100 (CanLII), per Watt JA, at para 36
  6. Glegg, ibid. at para 37
  7. R v Hamdan, 2017 BCSC 562 (CanLII), per Butler J
  8. R v Mehan, 2017 BCCA 21 (CanLII), per D. Smith JA, at paras 44 to 47
  9. R v Mastronardi, 2015 BCCA 338 (CanLII), per Kirkpatrick JA, at para 63
  10. R v McDonald, 2013 BCSC 314 (CanLII), per Fitch J, at para 21

"Manifestly Frivolous" Test

The judge has the obligation to dismiss the application the moment it becomes apparent as being "manifestly frivolous".[1] There must be a "obvious necessity of failure". The application must be one that "would never succeed" and would "by definition, waste court time."[2]

  1. Cody, supra, at para 38 ("trial judges should not hesitate to summarily dismiss “applications and requests the moment it becomes apparent they are frivolous”")
    R v Haevischer, 2023 SCC 11 (CanLII), per Martin J
  2. Haevischer, ibid. at paras 71 and 72