Summary Dismissal Applications: Difference between revisions

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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..."
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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
{{reflist2|2}}
=== 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}}
</ref>
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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Revision as of 11:14, 25 May 2023

General Principles

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

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

The threshold to grant an evidentiary hearing is a "low" one.[3] It is only necessary that the evidentiary hearing "would assist" or "can assist" to determine the "real issue."[4]

A judge may decline to hold an evidentiary hearing into a alleged Charter breach if there is no remedy available.[5] The decision is a discretionary one and is highly contextual.[6]

  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 Hamdan, 2017 BCSC 562 (CanLII), per Butler J
  4. ↑ R v Mehan, 2017 BCCA 21 (CanLII), per D. Smith JA, at paras 44 to 47
  5. ↑ R v Mastronardi, 2015 BCCA 338 (CanLII), per Kirkpatrick JA, at para 63
  6. ↑ R v McDonald, 2013 BCSC 314 (CanLII), per Fitch J, at para 21

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.[1]

Even where the voir dire is found to have sufficient merit to be held, the judge has the obligation to dismiss the application the moment it becomes apparent as being "manifestly frivolous".[2] There must be a "obvious necessity of failure". The application must be one that "would never succeed" and would "by definition, waste court time."[3]

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

The hearing is premised on the notion that there "is no point to the airing of a Charter issue in a criminal or quasi-criminal proceeding unless resolution of the issue might lead to the end of the prosecution or to the exclusion of evidence."[5]

  1. ↑ 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
  2. ↑ 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
  3. ↑ Haevischer, ibid. at paras 71 and 72
  4. ↑ R v Sutherland, 2017 BCPC 42 (CanLII), per Gouge J, at para 11
  5. ↑ Kapp, ibid., at paras 94 to 95
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