Court File and Parties
COURT FILE NO.: CR-22-R15544 DATE: 2023/06/07 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING Respondent – and – PATRICK KING Applicant
Counsel: Moiz Karimjee, for the Respondent Natasha Calvinho, for the Applicant
Endorsement
Phillips J.
[1] In light of the Supreme Court of Canada decision in R. v. Haevischer, 2023 SCC 11, I have determined that my decision summarily dismissing Mr. King’s change of venue application must be set aside.
[2] I summarily dismissed Mr. King’s application after determining that it was effectively a rerun of what was dealt with by Hackland J. in R. v. Bauder, 2023 ONSC 996. I came to the view that Hackland J.’s Bauder decision was entitled to deference in accordance with the principle of judicial comity and the efficient use of court resources underlying the summarily dismissal law at the time.
[3] I also, in effect, assessed the application on its merits and found those merits to be wanting.
[4] As Haevischer directs, assessment of the merits is no longer appropriate at the summary dismissal stage. Also, while Haevischer speaks to instances where summarily dismissal will be appropriate when an application’s “legal pathway” has already been decided upon, this matter is more a question of fact that of law. I have concluded that the facts underlying the application must be calibrated by a hearing in order to determine whether Mr. King meets the threshold relevant to change of venue. While I decided that he had no reasonable prospect of success, I cannot say that such an outcome is so obvious as to make the application manifestly frivolous.
[5] Consistent with my decision in the similar case of R. v. Hillier, 2023 ONSC 3413, my April 26, 2023 decision reported as R. v. King, 2023 ONSC 2553 is hereby set aside. Mr. King may bring his change of venue application afresh before another justice.
[6] The parties are invited to have the indictment put before me at 9:30am on any day over the coming weeks in order to set a new date for the application to be heard on an expedited basis.
Justice Kevin B. Phillips Released: June 7, 2023