Summary Dismissal Applications
General Principles
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]
- Evidence
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]
- Procedure
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.[7]
Certain other provinces have similar powers under civil procedure rules to dismiss applications for lack of merit.[8]
- "Manifestly Frivolous" Test
The judge has the obligation to dismiss the application the moment it becomes apparent as being "manifestly frivolous".[9] There must be a "obvious necessity of failure". The application must be one that "would never succeed" and would "by definition, waste court time."[10]
- ↑
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
- ↑ Iraheta, ibid.
- ↑ R v Hamdan, 2017 BCSC 562 (CanLII), per Butler J
- ↑
R v Mehan, 2017 BCCA 21 (CanLII), per D. Smith JA, at paras 44 to 47
- ↑
R v Mastronardi, 2015 BCCA 338 (CanLII), per Kirkpatrick JA, at para 63
- ↑
R v McDonald, 2013 BCSC 314 (CanLII), per Fitch J, at para 21
- ↑
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
- ↑
R v Sutherland, 2017 BCPC 42 (CanLII), per Gouge J, at para 11
- ↑
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 - ↑
Haevischer, ibid. at paras 71 and 72