A unanimous Supreme Court of Canada has held that an attempt by the Crown to have an application by an accused summarily dismissed may only succeed if the Crown establishes the underlying application is "manifestly frivolous". In R. v. Haevischer, 2023 SCC 11, Justice Martin, writing for the whole Court, endorsed this high threshold for summary dismissal, emphasizing that trial fairness is more than a policy goal – it is a constitutional imperative. The decision will deliver clarity and rigour across the country, replacing a patchwork of tests and practices that have been generally prejudicial to accused persons.
The "manifestly frivolous" standard established in Haevischer will apply whenever either side of a criminal case - Crown or defence - moves for summary dismissal of an application by the other side.1 However, in formulating the test, Justice Martin underscored the need to protect accused persons' rights, particularly Charter rights. As a practical matter, Haevischer should end a trend of prosecutors' excessive reliance on vague and/or low threshold tests to knock out defence applications early, before they have had a reasonable opportunity to advance, according to the widely held view of defence counsel across the country.
The particular circumstances Haevischer are extreme, in terms of gravity of the crimes found by the court and the seriousness of police misconduct alleged by the accused. It was not an easy 'test case'. Nevertheless, the Supreme Court embraced the opportunity to pronounce a clear, strong test – "manifestly frivolous" – for summary dismissal that will apply to all manner of applications in criminal court and all manner of accused persons seeking access to justice, no matter what accusations they face, the rights they seek to vindicate, and the social or economic disadvantages they may suffer from.
The accused, Mr. Johnston and Mr. Haevischer, were tried and found guilty of six counts of first degree murder and one count conspiracy to commit murder. Their high profile case, known as the "Surrey Six murders", originated in a drug trade dispute in Surrey, British Columbia. Mr. Johnston and Mr. Haevischer were found to have killed six individuals "execution-style" on October 19, 2007. Four of the victims were connected to organized crime. The other two happened to be at the scene. Before convictions were entered, both accused applied for a stay of proceedings for abuse of process arising from allegations of police misconduct and post-arrest conditions of confinement.
The Crown brought a summary dismissal motion, arguing that that the stay applications were doomed to fail. The summary dismissal motion was heard over six days, based on a record that was extensive but did not contain all the evidence that the defence wanted to rely on, particularly cross-examinations of key witnesses. The trial judge found in favour of the Crown, granted summary dismissal, holding that "the grounds advanced by the applicants could not support a stay of proceedings".
The Court of Appeal for British Columbia allowed appeals by the accused and found that the lower court should not have summarily dismissed the stay applications. The appeal court remitted the stay applications to the trial court for a voir dire. The Crown appealed to the Supreme Court of Canada.
At the Supreme Court, seven interveners were granted standing, including the Canadian Civil Liberties Association ("CCLA"), which was represented by McCarthy Tetrault.
The Supreme Court's Decision
Balancing efficiency and fairness
The Supreme Court underscored the need to balance two important values - trial efficiency and trial fairness - noting that, as held in Jordan, "both must be pursued in order for each to be realised: they are, in practice, interdependent".2
Trial efficiency is important to reducing delay in criminal cases, as well as in civil ones. Timeliness of trials is essential to the public's confidence in the administration of justice.3
However, the "allure of efficiency", is not an end in itself - what is required, according to the Court, is a fair and just adjudication that is proportionate to the proceeding at issue.4
The constitutional context of criminal trial
Although efficiency is a pressing goal, fairness requires that parties should have the opportunity to present their case, and have their evidence, claims and allegations adjudicated on their merits.5 In criminal cases, unlike in civil ones, trial fairness is a "constitutional imperative". A wrongly calibrated summary dismissal test can curtail the accused rights of full answer and defence, and fair trial, protected by ss. 7 and 11(d) of the Charter.6
Civil rules and standards are limited assistance in the criminal domain, given the constitutional dimension of the latter.7 As well, the realities of criminal trials must be respected, including "the vast nature, breadth, scope and variety of possible applications made in the criminal law context".
The Court recognized that setting the standard too low for summary dismissal could "stifle novel claims", agreeing with the arguments by certain interveners, including the CCLA, that such claims generally require "a full evidentiary exploration for the issues to properly emerge."8
"Manifestly frivolous" respects the proper balance
The Supreme Court recognized that the standard applied to summary dismissal varied across the country, and, unfortunately, arguments over summary dismissal could become lengthy, contrary to their stated goal of achieving trial efficiency.
Having regard to the uncertainty of standards in the jurisprudence9, the Court provided much-needed clarity: the standard of "manifestly frivolous" will now apply to summary dismissal applications in the criminal context where another standard is not otherwise legislated or provided for in the common law.
The "manifestly frivolous" standard is appropriate, according to the Court, because it, at bottom, weeds out applications that will necessarily and obviously fail.10 While trial efficiency is addressed in this way, trial fairness is protected by ensuring that those applications that might succeed, including novel claims, are decided on their merits.11
There can be doubt that the Court confirmed a "very low bar" for applications to proceed, as summary dismissal requires an "inevitability or necessity of failure".12 The frivolous nature of the application should be "obvious", the Court said.13
The test for summary dismissal has now been clarified by the Supreme Court of Canada in the criminal context, providing a flexible tool that protects fairness as well as efficiency. The key takeaways are:
- The standard of "manifestly frivolous" is a standard for summary dismissal of an application in criminal court. The flaws in the application must be manifestly apparent, so only applications that will necessarily and obviously fail are weeded out.
- This standard applies to summary dismissal motions in the criminal law context that are not otherwise subject to a legislated or judicial threshold.
- The judge must assume the facts as alleged by the applicant to be true and must take the applicant's arguments at their highest.14
- An application should explain the factual foundation and point towards anticipated evidence that can 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. A similar approach is taken to the overall application. An application will only be manifestly frivolous where there is a fundamental flaw in the application's legal pathway: the remedy cannot be reached.15
- 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.16
- The moving party bears the burden of convincing the judge that the underlying application is manifestly frivolous.17
- The record on a summary dismissal motion should normally be minimal and of a summary nature.18
Through these principles the Supreme Court has invigorated the ability of accused persons to advance applications and attempt to vindicate rights claims, with the benefit of full and fair evidentiary records. As the CCLA submitted, this is especially important because Charter claims can arise in diverse, unusual and challenging circumstances. The test set by the Supreme Court is calculated to ensure fair and reliable adjudication, consistent with access to justice and maintenance of the reputation of the administration of justice, as was the aim of the submissions of the CCLA and other interveners.
R. v. Haevischer, 2023 SCC 11
Date of Decision: April 28, 2023
1. Unless there is an existing legislated or judicial standard: para. 80.
2. Para. 46.
3. Para. 49.
4. Para. 51.
5. Para. 55.
6. Para. 56.
7. Para. 57.
8. Para. 57.
9. Para. 63-64, citing at least ten tests/variations.
10. Para. 67-69.
11. Para. 73.
12. Para. 67.
13. Para. 69.
14. Para. 83.
15. Para. 84-85.
16. Para. 89.
17. Para. 90-92.
18. Para. 93.
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