Summary Dismissal Applications: Difference between revisions
Created page with "==General Principles== There is "no absolute right to a voir dire" where a ''Charter'' right is claimed to have been violated.<ref> {{CanLIIRP|Bains|294qt|2010 BCCA 178 (CanLII)|254 CCC (3d) 170}}{{perBCCA|D. Smith J}}{{atL|294qt|69}}<br> {{CanLIIRx|Mehan|gww5r|2017 BCCA 21 (CanLII)}}{{perBCCA|D. Smith J}} <br> </ref> The judge may summarily dismiss Charter motions where there is non-compliance with the notice requirements or the motion is "frivolous".<Ref> {{CanLIIRx..." Tag: wikieditor |
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The judge may summarily dismiss Charter motions where there is non-compliance with the notice requirements or the motion is "frivolous".<Ref> | <!--The judge may summarily dismiss Charter motions where there is non-compliance with the notice requirements or the motion is "frivolous".<Ref> | ||
{{CanLIIRx|Iraheta|jc401|2020 ONCA 766 (CanLII)}}{{perONCA|Paciocco JA}} | {{CanLIIRx|Iraheta|jc401|2020 ONCA 766 (CanLII)}}{{perONCA|Paciocco JA}} | ||
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Before doing so the judge must give the applicant notice of the intention and permit an opportunity to make submissions.<Ref> | Before doing so the judge must give the applicant notice of the intention and permit an opportunity to make submissions.<Ref> | ||
{{ibid1|Iraheta}} | {{ibid1|Iraheta}} | ||
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=== Summary Dismissal Hearing=== | |||
Parties may request the trial judge to hold a summary dismissal hearing (sometimes called a "Cody hearing" or a "Vukelich hearing") to determine whether the Court should decline any request to hold a voir dire, including ''Charter'' motions.<ref> | Parties may request the trial judge to hold a summary dismissal hearing (sometimes called a "Cody hearing" or a "Vukelich hearing") to determine whether the Court should decline any request to hold a voir dire, including ''Charter'' motions.<ref> | ||
{{CanLIIRP|Cody|h4bfk|2017 SCC 31 (CanLII)|[2017] 1 SCR 659}}{{TheCourtSCC}}{{atL|h4bfk|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.")<br> | {{CanLIIRP|Cody|h4bfk|2017 SCC 31 (CanLII)|[2017] 1 SCR 659}}{{TheCourtSCC}}{{atL|h4bfk|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.")<br> | ||
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{{supra1|Cody}}{{atL|h4bfk|38}} ("trial judges should not hesitate to summarily dismiss “applications and requests the moment it becomes apparent they are frivolous”")<br> | {{supra1|Cody}}{{atL|h4bfk|38}} ("trial judges should not hesitate to summarily dismiss “applications and requests the moment it becomes apparent they are frivolous”")<br> | ||
{{CanLIIRP|Haevischer|jwwm7|2023 SCC 11 (CanLII)}}{{perSCC|Martin J}} | {{CanLIIRP|Haevischer|jwwm7|2023 SCC 11 (CanLII)}}{{perSCC|Martin J}} | ||
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There must be a "obvious necessity of failure". The application must be one that "would never succeed" and would "by definition, waste court time."<Ref> | |||
{{ibid1|Haevischer}} at paras 71 and 72<br> | |||
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