Le juge peut rejeter sommairement une requête en vertu de la Charte sous certaines circonstances

R. v. Snow, 2004 CanLII 34547 (ON CA)

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[51] Nor are we persuaded that the appellant suffered any prejudice from the fact that the trial judge failed to conduct a proper inquiry. First, it is abundantly clear from the remarks he made when dismissing the motion for a mistrial how the trial judge would have decided any inquiry on the basis of the evidence that was before him and that is now before us. The appellant made it clear at trial that he wanted the trial judge to conduct the inquiry. He did not resile from that position on appeal.

[52] Second, the appellant insisted on having the mistrial application heard one week after it was presented. The trial judge required that it be heard immediately and only dismissed the application after defence counsel refused to proceed. In our view, the trial judge was entitled to refuse to allow the appellant's serious allegations to cloud the trial for as long as a week. The appellant raised the point and, given the nature of the application, we can see no reason why he should not have been ready to proceed with it expeditiously. We would add, however, that had the appellant requested a reasonable delay to allow for proper preparation, it should have been granted.

[53] Third, the appellant has not attempted to supplement the record on appeal. We have already indicated the weaknesses in the appellant's affidavit. While the affidavit provided a sufficient basis to trigger an inquiry, certainly, it was far from compelling. Many of the appellant's allegations are based on observations he says he made from the dock in the courtroom. If that were the case, many others would have been aware of what was going on; yet, no objection was raised prior to the mistrial application and no other evidence was offered in support of the allegations. It is also noteworthy that the source given for three paragraphs (33, 42 [and] 43) was the defence counsel who was hardly reticent to complain about the trial judge's conduct; yet, he failed to object to these alleged improprieties at the time. It is significant that the appellant has not supplemented that record with any further evidence in this court. We are left with the trial record and all of its deficiencies. On the basis of that reco rd, we see no basis to interfere with the trial judge's summary determination that nothing improper occurred and that the mistrial application should be dismissed.