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Criminal - Summary Dismissal. R. v. England
In R. v. England (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal, here from convictions for "drug trafficking and firearm offences".
Here, the defendant attempted to re-open a Garofoli (warrant application) application, which was "summarily dismissed":[10] For the reasons that follow I would dismiss the conviction appeal. The trial judge did not have the benefit of the Supreme Court of Canada’s decision in R. v. Haevischer, 2023 SCC 11, 480 D.L.R. (4th) and did not apply the test for summary dismissal articulated in that case. However, although the trial judge used the phrase “summarily” to describe her dismissal of the motion, substantively she considered the motion to re-open on its merits on the exact evidentiary record the defence asked her to consider. Had the trial judge applied the correct test for summary dismissal, allowed the motion to proceed, and decided it, the result would have been exactly the same as the one she reached. That result was open to her on the record.
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[46] The appellant made a mid-trial motion to re-open the Garofoli application. The basis of the motion to re-open was that Ms. Finley’s evidence called into question the credibility of Officer Sherry on points he had included in the amended ITO that had supported the issuance of the warrant to search the storage unit. The appellant provided a summary of his submissions and the evidence on which he intended to rely.
[47] The Crown argued that the motion ought to be summarily dismissed because the appellant had given inadequate notice, the court had already ruled on the validity of the warrants, and the appellant’s submissions lacked merit. In the alternative, the Crown sought an adjournment to prepare a more complete response.
[48] In dismissing the motion to re-open, the trial judge noted that the parties had not identified any cases concerning her authority to re-open the Garofoli application, but they agreed she could do so if the interests of justice required. She stated that the standard for determining whether the motion to re-open should be summarily dismissed was whether it had a “reasonable prospect of success”, citing R. v. Glegg, 2021 ONCA 100, 40 C.C.C. (3d) 276, at paras. 36-37. ....
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Analysis
(1) The Conviction Appeal
[64] On the appellant’s formulation, the motion to re-open the Garofoli application contemplated two distinct stages. In the first stage, the trial judge was to consider – because the Crown asked her to – whether the motion to re-open should be summarily dismissed. Assuming it was not summarily dismissed, the second stage would involve determining the motion to re-open on its merits.[5] The appellant submits that the trial judge erred by applying the wrong test in the first stage, and therefore never properly reached or determined the merits of the motion at the second stage. He goes on to argue that the second stage admits of only one proper result: the motion should have been granted because the credibility of Officer Sherry was legitimately in question.
[65] The test the trial judge applied to determine whether the motion to re-open should be summarily dismissed was whether it lacked a “reasonable prospect of success”. In applying that test she examined the merits of the motion and considered and weighed evidence, in particular, the credibility and reliability of the competing testimony given by Officer Sherry and Ms. Finley about viewing surveillance video.
[66] As the appellant points out, the trial judge approached the matter without the benefit of the decision in Haevischer, in which the Supreme Court considered the question of when it is appropriate to “summarily dismiss an application without hearing it on its merits” in the criminal context: at para. 1.
[67] In Haevischer, the court rejected using “a reasonable prospect of success” as the test for summary dismissal. The appropriate threshold for summary dismissal is instead whether the application is “manifestly frivolous”.[6] To determine whether that threshold is met, the judge “must assume the facts alleged by the applicant to be true and must take the applicant’s arguments at their highest”. Moreover, “the judge ought to generally assume the inferences suggested by the applicant are true, even if competing inferences are proffered.” After making these assumptions, an application will only be manifestly frivolous if there is a fundamental flaw in the applicant’s legal pathway or “where the remedy sought could never issue on the facts of the particular application”: at paras. 66, 77, 83-86.[7]
[68] I agree with the appellant that the trial judge did not apply the test for summary dismissal set out in Haevischer. However, I disagree that this had any impact on whether the trial judge properly dealt with the motion to re-open. Unlike in Haevischer, the appellant was not deprived of the opportunity to have the motion to re-open decided on the full argument and the evidentiary record he wished.
[69] In Haevischer, the defendants applied for stays of proceedings based on alleged police misconduct and inhumane conditions of confinement. They argued that their rights to a fair trial were thus prejudiced and the integrity of the justice system undermined. They wanted the applications determined in a voir dire that would include an evidentiary hearing and would require the trial judge to decide on a complete record whether they had met the burden of establishing that stays were warranted. The Crown sought summary dismissal on the basis that an evidentiary hearing was not necessary and would not assist in determining the merits of the applications. The trial judge agreed with the Crown, summarily dismissing the applications because an evidentiary hearing “would not assist the court”: Haevischer, at paras. 16-17, 24, 28-29.
[70] The Supreme Court held the trial judge should not have summarily dismissed the application because it was not manifestly frivolous. Summary dismissal of the application undermined the defendants’ fair trial rights, as it denied them the opportunity to proceed to a voir dire on the evidentiary record they sought to develop by eliciting further evidence to substantiate their claims, including by cross-examination. The result was a decision on the ultimate issue raised by the application that was made without “access to all the necessary evidence” and on an “incomplete record”: Haevischer, at paras. 115-18.
[71] Unlike the situation in Haevischer, in this case the appellant’s trial counsel acknowledged on the record that the motion to re-open was supported by “all the arguments [the appellant] would advance” if the Garofoli application were re-opened. Defence counsel also “confirmed that [the appellant] did not intend to seek to adduce additional evidence”. Although the procedure in Haevischer contemplates a separation between what is to be considered on a summary dismissal and the fuller record that should be considered on the application itself, the parties in this case did not make or observe that separation. As the trial judge pointed out:[T]he defence argument as to the impact of the trial evidence on the [result of the Garofoli application] was, in effect, fully argued before [her] as if [she] had already granted the right to re-open the [Garofoli application]. The defence was not deprived of the opportunity to make further arguments or adduce additional evidence. [72] Accordingly, the use of the wrong test for summary dismissal did not have the effect that it did in Haevischer. It did not result in a failure to consider the motion to re-open on the evidentiary record the defence sought to establish. It did not result in a consideration of the merits of the motion to re-open on a record that the defence wished to supplement or expand, or that was incomplete from the defence perspective. The motion to re-open was determined, on its merits, not on an incomplete record, but on what was the full record the appellant at trial wanted considered.
[73] This conclusion is not altered by the appellant’s argument that defence counsel at trial made a mistake by seeking to rely only on the record she filed and not asking for the opportunity to develop a more complete record. Ineffective assistance of counsel is not advanced as a ground of appeal. Nor does it matter that Crown counsel had indicated a desire to call further evidence. What matters is whether the defence in bringing the motion to re-open had the record for the motion that it wished the trial judge to consider.
[74] Had the trial judge followed the two-part approach in Haevischer, and first decided that, assuming the appellant’s factual assertions about credibility were true, the motion was not manifestly frivolous, she would have been entitled to proceed to the second part and consider the motion itself on its merits. She would have had a wide discretion as to how to do so, as long as the motion was treated fairly. As the court said in Haevischer, at para. 106:If summary dismissal is refused, judges will also be called upon to determine how the voir dire on the underlying application should be conducted, including whether there should be an evidentiary hearing or whether the matter can proceed solely on the basis of argument, an agreed statement of facts or some combination of methods. Allowing an application to proceed to a voir dire is not a free licence to counsel to argue an application however they choose. The time and leeway given to counsel to present and argue the application should be proportionate: just enough to ensure that the application is fairly treated. Beyond that point, additional time and leeway can cause undue delay. [Italics emphasis in original; underlined emphasis added.] [75] Here, the trial judge had all the defence arguments and the evidentiary record the defence wanted. In deciding, on the basis of that complete record and what defence counsel indicated was full argument, that the motion had no reasonable prospect of success, the trial judge in effect decided that the motion should be dismissed on its merits.[8] The motion was thus fairly treated and properly decided.
[76] I would therefore dismiss the conviction appeal.
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