“Manifestly Frivolous”: R v Haevischer & Summary Dismissal in Criminal Law

In a rare unanimous judgement, the Supreme Court of Canada (“SCC”) has ruled in R v Haevischer, 2023 SCC 11 (Haevischer) that only “manifestly frivolous” applications can be summarily dismissed in the criminal law context. The decision is significant for two reasons: (1) it arises out of the notorious “Surrey Six” case; and (2) it recalibrates the rigorous standard that trial judges must apply when exercising their discretionary summary dismissal power.

This contribution expands upon Jennifer Laws’ article from December 2021 and is thus largely restricted to an analysis of the core elements of the SCC’s decision. However, as Jennifer noted in her article, many of the central legal issues and arguments were not available at the time of publication; they are outlined again below for convenience and in order to provide appropriate background and context.

Background 

The notorious “Surrey Six” case

The facts of this case emanate from the prominent 2007 “Surrey Six Murders”, a drug trade dispute which resulted in several high-profile, “execution-style” murders (Haevischer, para 6). In 2014, the two co-accused, Mr. Haevischer and Mr. Johnston,  were tried together and found guilty for these murders; specifically, they were convicted on six counts of first-degree murder and one count of conspiracy to commit murder (Haevischer, para 5). 

The underlying stay of proceedings application

Subsequent to this ruling, but before a conviction was entered, they brought an application for a stay of proceedings on the basis of abuse of process (Haevischer, para 16). Their application was grounded in allegations of grievous police misconduct as well as inhumane confinement conditions while on remand, contrary to ss. 7 & 12 of the Canadian Charter of Rights and Freedoms (“Charter”) and Canada’s international human rights obligations (Haevischer, paras 18-19).

A stay of proceedings is a drastic remedy that effectively and permanently halts the prosecution (Haevischer, para 73). Procedurally, this type of application usually proceeds by way of a voir dire (a separate hearing within the trial) (Haevischer, para 22). In this respect, a voir dire is significant because it allows such applications to be adjudicated on their merits, through the possibility of a more comprehensive evidentiary hearing. However, owing to the crucial gatekeeping function that trial judges play, it is open to them to “summarily dismiss” an application for a stay of proceedings, effectively circumventing the need for a voir dire because there is some fundamental legal flaw with the underlying application (Haevischer, paras 47, 85).  

No Uniform Standard

Outside jurisdictional constraints, the appropriate framework for the threshold test to be applied when exercising this summary dismissal power animated the core legal question for the SCC to resolve (Haevischer, para 23). A brief glance at the Canadian jurisprudential history on the issue demonstrates a lack of uniformity: over the years, the threshold has been interpreted diversely, including, inter alia, as one of no reasonable prospect of success; being frivolous or manifestly frivolous; having no basis upon which it could succeed; or, having no reasonable likelihood that the voir dire will assist (Haevischer, para 63). 

Procedural History

In her article, Jennifer outlines the lower court decisions, including the Vukelich hearing (which informs the relevant criminal law standard for summary dismissal in British Columbia), as well as the Babos test for abuse of process. 

At the SCC

Penning the unanimous decision, Martin J. upheld the Court of Appeal for British Columbia’s (“BCCA”) ruling, dismissing the Crown’s appeal and remitting Mr. Haevischer’s stay application back to trial for a voir dire (Haevischer, para 4). The other applicant and co-accused in the case, Mr. Johnston, passed away before the appeal was heard by the SCC, so no judgement was made regarding his application (Haevischer, para 4).  

Clarifying the state of legal impasse that appears to surround this area of law, Martin J concisely stated that the proper standard for summary dismissal is assessing whether the underlying application is manifestly frivolous (para 66). Affirming that this denotes a low threshold, Martin J explained that “frivolous” refers to the “inevitability or necessity of failure” of the underlying application (Haevischer, para 67). “Manifestly” serves as an added layer of scrutiny in the analysis, requiring that “the frivolous nature of the application be obvious” (Haevischer, para 69).

In applying the standard to the case at hand, the SCC echoed the BCCA by noting that the trial judge erred in law in two principal respects: first, by failing to assume the truth of central facts and inferences alleged by the defence and amici; and second, by applying an insufficiently rigorous threshold for summary dismissal (Haevischer, para 108). This latter error unfortunately led to an unnecessary application of the third Babos criteria, which caused the trial judge to seemingly (and erroneously) adjudicate the specific legal issue on its merits, despite the partial record before her (Haevischer, paras 108, 111-114). This point was particularly consequential as no viva voce evidence (oral testimony) or cross-examination was permitted at the Vukelich hearing (Haevischer, para 25). In fact, defence counsel submitted that they intended to call far more comprehensive evidence at the voir dire, including cross-examining the police officers and adducing expert evidence about the adverse mental health effects of solitary confinement (Haevischer, para 27). 

Analysis

Haevischer Applies to All Summary Dismissal Motions 

While the SCC’s actual application of the “manifestly frivolous” standard in Haevischer was tailored to the specific underlying stay of proceedings application, its authoritative legal guidance applies to all motions that may be before a trial judge for summary dismissal in the criminal context (Haevischer, paras 2-3). To that end, some notable features of this recalibrated standard are worth unpacking. 

A Welcome Ode to First Principles: Trial Efficiency and Trial Fairness

In justifying the standard, Martin J. eloquently takes us back to basics by grounding this recalibration in two fundamental and interdependent principles: trial efficiency and trial fairness (Haevischer, para 46). 

Drawing out the analogue to the civil context, she contextualizes this discretionary power by noting that trial judges play an essential gatekeeping role (Haevischer, para 47). As such, the contours of access to justice are front and centre when we consider trial efficiency. The most salient factor in the criminal context may be explained by the enduring and resounding significance of R v Jordan, 2016 SCC 27, which reminds us that “the need for efficient trials to reduce undue delay is manifest” (Haevischer, para 49). The logical derivative of this assertion is that “dismissing unmeritorious applications made in the criminal law context helps ensure that trials occur within a reasonable time” (Haevischer, para 49).

Turning to trial fairness, Martin J emphatically notes that this principle is not simply policy window-dressing, but a “constitutional imperative” (Haevischer, para 56). In setting out this prong, the SCC rightfully highlights that the stakes in a criminal trial are informed and guided by relevant Charter provisions. In equal measure, the decision highlights the necessary function that the discretionary summary dismissal power plays in heralding these very Charter protections and principles. Instructively, the Court expands upon the necessity of a contextual approach (Haevischer, para 73):

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.

As the SCC properly reminds us, given the spectrum of applications that may make their way before a trial judge in criminal courts, engaging in a merits-based analysis on limited evidence may circumvent an accused’s Charter rights “by stopping [them] from fully making arguments and eliciting evidence on their application”, a key constitutional protection under ss. 7 and 11(d) of the Charter (Haevischer, para 56). 

The SCC’s attention on this point is critical. Section 11(d) is particularly important, as the presumption of innocence has long been held to be inextricably intertwined with championed values that characterize our criminal legal system, including dignity, the worth of the human person and the rule of law (Reference re Motor Vehicle Act (British Columbia) S. 94(2), [1985] 2 SCR 486, at para 69). The significance of the presumption of innocence in terms of the summary dismissal power in the criminal law context lies in the fact that, by their very nature, Vukelich-type hearings have historically been geared towards an ex ante assessment. As the SCC notes, the question before the trial judge was whether a voir dire would assist in deciding if the alleged abuses advanced by the accused could entitle them to a stay  (Haevischer, para 29). As a matter of logic, this requires approaching the question in a forward-looking, prospective manner. Consequently, there is a real risk that trial judges will, intentionally or not, deviate into a merits-based assessment at a point in the proceedings where the evidentiary record is not – as a matter of procedure – well-suited to such an endeavour. 

No Merits-Based Reasoning 

The latter qualification regarding procedure is crucial, as it effectively tees up the source of analogy between trial efficiency and trial fairness. As Martin J reminds us, “[a] detailed assessment [of the merits] goes beyond the scope of a summary dismissal motion and invites the sort of protracted proceedings that currently plague Vukelich hearings” (Haevischer, para 77). Thus, on the one hand, such detailed assessments may curtail fundamental rights and protections. On the other hand, they defeat the logic of summary dismissal in general. 

No Category of Offence is Beyond the Scope of A Stay of Proceedings

The SCC also emphasized the role that novelty plays in considering trial fairness.  The Court focused on its precedential value and the fact that “courts have acknowledged the risk of stifling novel claims, given that the contours of constitutional rights are settled through the litigation of emerging, unresolved and contentious issues” (Haevischer, para 58, citing R  v McDonald, 2013 BCSC 314 at para 44). This point is significant in the case at hand, as the underlying application concerned both “the seriousness of the offences and the seriousness of the [state] abuse” (Haevischer, para 121, emphasis in original). Nevertheless, Martin J. goes on to say that no category of offence is beyond the scope of a stay (Haevischer, para 121). This point, while more peripheral in the Court’s analysis, was particularly contentious. 

To that end, this seems to underpin the public controversy surrounding the decision. I believe that this may be further explained by reference to two factors: (1) the notoriety attributed to the accused’s conviction in the first place; and (2) the potential outcome of the underlying remedy being sought. 

With respect, I would suggest that the public outcry reflects a fundamental misapprehension of the decision itself. Haevischer does not stand for the proposition that the more rigorous “manifestly frivolous” standard now guarantees that the underlying remedy being sought will be granted (in this context, a stay of proceedings); rather, it places more emphasis on the discretionary summary dismissal power of judges to hear these applications on their merits. To echo Jennifer’s conclusion in her original article, the criminal legal system is premised upon fundamental rights and protections. In my opinion, it would be misguided to eclipse the pragmatic benefits of strengthening these vital rights and protections because the case that ushered them in is controversial. 

A Shift in Legal Burden

Haevischer also introduces a change in onus. Previously, the burden was on the party bringing the underlying claim to establish that a voir dire would assist in adjudicating the underlying application. Now, the legal burden is unequivocally on the party bringing the summary dismissal motion, which in practice tends to be the Crown (Haevischer, para 96). The Court further clarified that a trial judge should not engage in even a limited weighing of evidence at the summary dismissal stage (Haevischer, para 82). Rather, “the judge must assume the facts alleged by the applicant to be true and must take the applicant’s arguments at their highest” (Haevischer, para 83). When we consider the dichotomy between summary dismissal and a voir dire, this makes perfect sense. A voir dire allows for adjudication on the merits by way of a more comprehensive evidentiary record. Summary dismissal, on the other hand, is geared towards “avoid[ing] unnecessary and wasteful voir dires” (Haevischer, para 65). Necessarily then, summary dismissal is not geared towards adjudication on the merits.

Accordingly, the new standard is important as it places sensible procedural limits and leeways on Crown counsel, defence counsel, as well as the trial judge. Borrowing a phrase from Martin J. herself, it emphasizes that “all participants in the criminal justice system share a responsibility [to uphold trial efficiency]” and therefore, by extension, trial fairness (Haevischer, para 50, emphasis in original). 

The reminder that the responsibility to ensure timely and fair proceedings is shared is crucial when we consider the practical realities of this framework against current concerns relating to “courthouse chaos”, particularly in Ontario. As Justice Fraser of the Ontario Court of Justice recently stated, there is a growing concern relating to courthouse closures “wreak[ing] havoc on the orderly conduct of business in [Toronto criminal proceedings].” (R v CL, 2023 ONCJ 381 at para 15). It is not insignificant that the decision itself dealt with a stay arising out of excessive delay, contrary to s.11(b) of the Charter. 

Haevischer’s logic is therefore consequential because it reiterates for us that the otherwise “routine” (Haevischer, para 52) nature of Vukelich-type hearings only exacerbates this existing problem, especially because pre-Haevischer, the lack of uniform standard did little to prevent the circumvention of critical legal rights, protections and responsibilities. This can have profound consequences, including prolonged uncertainty for those awaiting trial (victims and accused), potential infringement on the presumption of innocence, and a strain on the overall efficiency of the legal system.  

Conclusion

In summary, on a proper reading of Haevischer, it should not be contentious nor unreasonable to appreciate the legal wisdom that lands us at the “manifestly frivolous” standard. To that end, it will be interesting to see if the decision is effective in addressing the concerns it intended to moving forward.