R. v. Haevischer, 2021 BCCA 34, 2023 SCC 11 (39635)
“H and J were tried and found guilty of six counts of first degree murder and one count of conspiracy to commit murder. Before convictions were entered, H and J applied for stays of proceedings for abuse of process. They claimed that systemic police misconduct and the inhumane conditions of confinement they experienced while on remand caused prejudice to their rights to a fair trial and undermined the integrity of the justice system. Amici curiae, who were appointed to represent the interests of the accused and to provide an adversarial context for the court, also put forward an additional ground of police misconduct based on confidential information.
Before the stay applications brought by H and J proceeded to a voir dire, the Crown brought a motion for summary dismissal of the applications on the basis that neither application disclosed a sufficient foundation to establish that a voir dire was necessary or would assist the court in determining the merits of the applications. Although the written record on the summary dismissal motion was extensive, there was no opportunity to adduce viva voce evidence or to cross-examine key witnesses in either the open or the in camera portion of the hearing.
The trial judge concluded that, even if the applications were taken at their highest, the grounds advanced could not support a stay of proceedings, and, as such, an evidentiary hearing (i.e., a voir dire) on the merits would not assist the court. She summarily dismissed the applications and ordered the convictions entered. On appeal by H and J, the Court of Appeal quashed the convictions and remitted the stay applications to the trial court for a voir dire. It held that the trial judge imposed too high a standard to permit the applications to proceed to an evidentiary hearing and that the applications should have been fully addressed and decided at a voir dire on their merits.”
The SCC (8:0) dismissed the appeal.
Justice Martin wrote as follows (at paras. 2-4, 56, 66, 68-73, 80, 83-92, 98-100, 104-107):
“There is a clear consensus in courts across Canada that trial judges have the power to summarily dismiss applications made in the criminal law context in certain circumstances. However, the national case law is divided about the proper threshold to be applied. It is time for this Court to provide guidance on this important issue, which is linked to concepts as fundamental to our criminal justice system as trial fairness and trial efficiency. The chosen standard must protect the accused’s constitutional rights to a fair trial and full answer and defence while avoiding undue delay and the disproportionate or wasteful use of court resources. It should also discourage decision makers from determining the merits of the underlying application without all the evidence, as this risks unfairness for an efficiency which may be more apparent than real.
As a result, an application in a criminal proceeding, including for a stay of proceedings for abuse of process, should only be summarily dismissed if the application is “manifestly frivolous”. This threshold best preserves fair trials, protects the accused’s right to full answer and defence, and ensures efficient court proceedings. It is a rigorous standard that allows trial judges to weed out the sort of applications that the summary dismissal power is designed to exclude, but permits most applications to be decided on their merits in proportionate proceedings.
In the case at bar, Mr. Johnston and Mr. Haevischer applied for stays of proceedings based on abuse of process; the Crown, in turn, asked for and was granted summary dismissal of the stay applications. Based on the trial judge’s own findings, Mr. Johnston’s and Mr. Haevischer’s applications for a stay of proceedings were not manifestly frivolous. I agree with the Court of Appeal for British Columbia that it was an error to summarily dismiss them. Accordingly, I dismiss the appeal. Mr. Haevischer’s stay application will be remitted to the trial court for a voir dire. As requested by Mr. Johnston’s counsel, I make no order in relation to Mr. Johnston, who passed away in prison after this appeal was argued before this Court.
In criminal cases, trial fairness is more than a policy goal: it is a constitutional imperative. A criminal trial involves allegations made by the state against an accused whose liberty is often at stake. The summary dismissal of criminal applications can curtail the accused’s right to full answer and defence and the right to a fair trial protected by ss. 7 and 11(d) of the Charter by stopping the accused from fully making arguments and eliciting evidence on their application (see Dersch v. Canada (Attorney General),  2 S.C.R. 1505; R. v. Rose,  3 S.C.R. 262). There are, of course, limits to these rights. For example, accused persons are not entitled to a voir dire and, if a voir dire is granted, are not entitled to whatever style of voir dire they would prefer (Vukelich, at para. 26). The trial judge decides if and how the voir dire proceeds and whether it should include an evidentiary hearing. Nevertheless, summary dismissal of applications made in the criminal law context implicates and, in certain circumstances, can curtail the accused’s rights.
I conclude that the appropriate standard for summary dismissal is whether the underlying application is manifestly frivolous. This standard draws on the case law concerning frivolous applications, as advanced by some parties and interveners, including Mr. Johnston, Mr. Haevischer, the Independent Criminal Defence Advocacy Society, the Canadian Civil Liberties Association, and the Trial Lawyers Association of British Columbia. However, it also requires that the flaws in the application are manifestly apparent.
Aside from the inevitability or necessity of failure, the “frivolous” standard has captured a compendium of other phrases. It is because it will necessarily fail that a frivolous application has also been described as “not arguable” and as “having no basis upon which it could succeed”. Similarly, saying an application is “doomed to failure” connotes inevitability and is just another way of saying an application is “frivolous” (see, e.g., Armstrong, at para. 38; Omar, at para. 31; Cobb, at para. 7).
However, I add the word “manifestly” to capture the idea that the frivolous nature of the application should be obvious. “Manifestly” is defined as “as is manifest; evidently, unmistakably, openly”, and “manifest” is defined as “[c]learly revealed to the eye, mind, or judgement; open to view or comprehension; obvious” (Oxford English Dictionary (online)). Just like the civil standard for striking a claim requires that it be “plain and obvious” that the claim discloses no reasonable cause of action (or, in French, “évident et manifeste”), the addition of the word “manifestly” adds another layer to the “frivolous” standard and helpfully indicates that a summary dismissal motion should be based on that which is clearly revealed.
The “manifestly frivolous” standard has been used recently by the Quebec Court of Appeal, including in the context of the proposed summary dismissal of a stay application (Accurso, at paras. 323 and 329; Brûlé, at para. 31; see also Ouellet v. R., 2021 QCCA 386, 70 C.R. (7th) 279, at para. 12, fn. 3, referring to an application being [translation] “frivolous on its face”). In applying this standard, the Court of Appeal has called for judges to exercise caution before summarily dismissing an application because such dismissal deprives the applicant (often the accused) of a hearing on the merits (Accurso, at paras. 314-15, citing Brûlé, at para. 31). In summary dismissal motions, rather than requiring that the accused prove the existence of the Charter violation on an underlying Charter application, the Court of Appeal has required only that the accused demonstrate that it is conceivable that the claim could be allowed (Accurso, at para. 323).
Thus, the “manifestly frivolous” standard, which connotes the obvious necessity of failure, is the appropriate threshold for the summary dismissal of applications made in the criminal law context. If the frivolous nature of the application is not manifest or obvious on the face of the record, then the application should not be summarily dismissed and should instead be addressed on its merits.
This standard best serves both the values of trial efficiency and trial fairness. It is a rigorous standard that will allow judges to weed out those applications that would never succeed and which would, by definition, waste court time. The blunt tool of summary dismissal, which precludes the applicant from proceeding, is not the only way judges can protect efficiency. The judge’s panoply of case management powers allows for tailored proceedings and mitigates concerns that “fishing expeditions” may derail a trial’s progress, generate undue delay, or result in the disproportionate use of court time.
The “manifestly frivolous” threshold also protects fair trial rights by ensuring that those applications which might succeed, including novel claims, are decided on their merits. Protecting fair trial rights is always important, but takes on added significance when the application in question carries great consequences. Generally speaking, the greater the consequences associated with a given application, the greater the possible impact on an accused’s rights if the application is summarily dismissed. Certain applications carry more significant consequences simply because of their nature and the issues they raise. For example, applications for a stay of proceedings based on abuse of process are of enormous import for an accused and the public. They often involve serious allegations of egregious state misconduct and always call for serious consequences, namely, a permanent halting of the prosecution (Babos, at paras. 30, 35 and 37; Canada (Minister of Citizenship and Immigration) v. Tobiass,  3 S.C.R. 391, at para. 91). Similarly, an underlying application might allege breaches of an accused’s Charter rights, such that its summary dismissal prevents the accused from litigating those rights in the course of trial.
The “manifestly frivolous” standard is intended to be a clear standard to be applied to summary dismissal motions brought in the criminal law context that are not otherwise subject to a legislated or judicial threshold. It does not, for example, have an impact on applications brought under Criminal Code provisions such as s. 685(1) applications concerning frivolous appeals or s. 679 applications for bail pending an appeal (including Oland). Nor does this standard eclipse the bodies of law that have developed around particular types of applications, such as Garofoli and Pires applications to challenge the lawfulness of a search warrant.
On the summary dismissal motion, the judge must assume the facts alleged by the applicant to be true and must take the applicant’s arguments at their highest (Vukelich, at para. 26; Armstrong, at para. 8; Gill (BCSC), at para. 24). While there is no need to weigh the evidence or decide any facts on the summary dismissal motion, the applicant’s underlying application should explain its factual foundation and point towards anticipated evidence that could establish their alleged facts. Where the applicant cannot point towards any anticipated evidence that could establish a necessary fact, the judge can reject the factual allegation as manifestly frivolous.
Likewise, the judge ought to generally assume the inferences suggested by the applicant are true, even if competing inferences are proffered. The judge should only reject an inference if it is manifestly frivolous, meaning that there is no reasoning path to the proposed inference. This might be the case where a necessary fact underpinning the inference is not alleged or if the inference cannot be drawn as a matter of law (e.g., if the proposed inference is based on impermissible reasoning).
A similar approach is taken to the overall application. Because the truth of the facts alleged is assumed, an application will only be manifestly frivolous where there is a fundamental flaw in the application’s legal pathway: the remedy cannot be reached. For example, an application may be manifestly frivolous because the judge has no jurisdiction to grant the requested remedy (see, e.g., Lehr, at paras. 27-32). Alternatively, the application could put forward a legal argument that has already been rejected: applications that depend on legal propositions that are clearly at odds with settled and unchallenged law are manifestly frivolous (see, e.g., Lehr, at paras. 22-23).
An application may also be manifestly frivolous where the remedy sought could never issue on the facts of the particular application. The nature of the application will be relevant to this analysis. On certain applications, the trial judge may be able to assume the facts put forward by the applicant and, assuming those facts, determine whether the remedy sought could issue. Garofoli applications, where trial judges ask if the ITO could still support the issuance of the search warrant even if the challenged portions of the ITO are excised, make the point. Where the ITO still supports the issuance of the warrant, then the application can be summarily dismissed because, even if the defence could prove that the impugned portions of the ITO ought to be struck, the sought-after remedy (the exclusion of evidence obtained under the warrant) would not follow.
Alternatively, key portions of the application could be missing. For example, the application may fail to set out a conclusion that is necessary to satisfy the relevant legal test. Specifically, an application for a stay for abuse of process must fail if the applicant accepts that an alternative remedy is capable of redressing the prejudice. Key factual allegations might also be missing. For instance, an application for a stay for abuse of process must fail if the applicant has not alleged any abusive conduct.
These fundamental flaws ought to be manifest. If the error is not apparent on the face of the record, the application should proceed.
Finally, the trial judge’s power to summarily dismiss an application is ongoing. Even if the judge permits the application to proceed to a voir dire, the judge retains the ability to summarily dismiss the application during the voir dire if and when it becomes apparent that the application is manifestly frivolous (Cody, at para. 38, citing Jordan, at para. 63). This may occur if the applicant is unable to elicit any evidence, contested or otherwise, to prove a necessary fact.
On a motion for summary dismissal, the party moving for summary dismissal bears the burden of convincing the judge that the underlying application is manifestly frivolous.
Some argued that the burden should be placed on the party bringing the underlying application because there is no automatic entitlement to a voir dire (Vukelich, at para. 26). However, placing the onus on the party who moves for summary dismissal is logical, practical and preferable. Logically, the party who seeks summary dismissal should bear the onus of demonstrating that this remedy ought to be granted. Practically, the burden may discourage the moving party from applying to summarily dismiss every single application brought in a case, whether manifestly frivolous or not. Such tactical behaviour is highly inefficient and wastes court time.
If, without a motion from a party, a trial judge exercises the case management power to hold a summary dismissal hearing, the burden still rests on the party opposing the underlying application (i.e., the party who would benefit from the application’s summary dismissal). If the party demonstrates that the application is manifestly frivolous, the judge can summarily dismiss the application.
While counsel’s statements will often be sufficient, sometimes more might be required. I leave it to the discretion of the judge deciding the summary dismissal motion to determine whether something more is required and, if so, what that something more should be. Deciding how the summary dismissal motion proceeds is within the judge’s case management powers. However, the judge should bear in mind that the more material filed, the greater the risk of delay, the greater the risk that the summary dismissal hearing devolves into a scrum over the merits of the underlying application and the greater the risk that the judge inadvertently decides the merits of the application itself (Gill (BCSC), at para. 24).
While the “manifestly frivolous” standard sits at the core, the overall framework for summary dismissal requires a flexible approach to permit jurisdictional variance around the rules of criminal procedure and to foster a principled and practical approach.
In the normal course of a criminal trial one party files an underlying application — which can take many forms and cover myriad topics — and the party opposite may counter with a motion to dismiss that underlying application. This creates a two-part framework under which judges are asked to (1) address the summary dismissal motion; and, if refused, (2) decide the underlying application on its merits.
In exercising their discretion concerning whether to hear the summary dismissal motion, judges must consider the context and consequences associated with the underlying application, including whether it is amenable to summary disposition and how the applicant’s fair trial rights will be affected by a summary dismissal hearing. Additionally, judges must consider whether holding a summary dismissal hearing will be an effective use of court time or if it will actually create delay. Where, for example, the summary hearing would take almost as long as a voir dire on the underlying application, consideration needs to be given to whether fairness, efficiency and respect for the administration of justice more strongly support using the time to deal with the merits of the underlying application rather than devoting resources to matters preliminary to it. In terms of pure efficiency, judges could not be faulted for proceeding directly to a voir dire when it would take the same time to hear the application on its merits as to conduct a summary dismissal hearing. Judges should only conduct a Vukelich-type hearing where doing so best ensures a proportionate process: one which respects the applicant’s right to be heard, serves the goal of trial fairness, actually saves resources, and avoids undue delay.
If judges decide to hear the summary dismissal motion, they must also decide how to hear it. Judges must ensure the summary dismissal motion proceeds in a fair and proportionate manner.
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. Exercising these case management powers not only calls for proportionate proceedings which balance trial efficiency and trial fairness, but may require a comparative assessment of what approach best meets the exigencies and equities of a particular case. Judges should bear in mind that the summary dismissal power is not their only tool to manage the underlying application and consider whether their other case management powers are better suited to managing the underlying application (Samaniego; Cody, at para. 38). The values of trial efficiency and trial fairness may be better served by holding a voir dire on the underlying application that is tailored through the use of judicial discretion to only what is necessary for a fair consideration of the substance of the allegations. When judges exercise their case management powers in this way, they fulfill the underlying purposes of case management powers: ensuring that trials proceed in a fair, effective and efficient manner (Samaniego, at para. 21).”