SCC clarifies threshold for summarily dismissing stay-of-proceedings applications in criminal trials

Court has outlined new 'robust' standard for dismissal motion applications: lawyer

SCC clarifies threshold for summarily dismissing stay-of-proceedings applications in criminal trials
Dagmar Dlab and Brock Martland

In a criminal trial, courts can only summarily dismiss an application for a stay of proceedings if the moving party meets the threshold of showing that the application is “manifestly frivolous,” the Supreme Court of Canada ruled today.

In R. v. Haevischer, 2023 SCC 11, a unanimous eight-judge panel dismissed the Crown appeal. The British Columbia case dealt with two men – one now deceased – who had been convicted at trial on six counts of first-degree murder and one count of conspiracy to commit murder for the 2007 Surrey Six killings.

In granting the Crown’s motion for summary dismissal of the stay application, the trial judge had made three errors, according to the SCC. The judge failed to take the alleged facts and inferences behind the application as true. The judge applied an insufficiently rigorous “merits-based threshold” for summary dismissal. And the judge focused on the application’s merits and ultimate outcome rather than on whether it was “manifestly frivolous.”

The SCC remitted the stay application back to the Supreme Court of British Columbia for a voir dire hearing.

The decision is “seminal” for criminal proceedings, says Dagmar Dlab, counsel to Cody Rae Haevischer, a respondent. She says the SCC has enunciated a new, “robust” standard for motions to dismiss applications in a criminal trial.

“In BC, a real trend had developed where the Crown was fairly reflexively and fairly routinely bringing preliminary screening applications to bring a quick end to defence applications for Charter motions, or to lead evidence to seek a remedy,” says Brock Martland, who acted for the late Matthew James Johnston.

The Crown has been relying on the BC Court of Appeal decision, R. v. Vukelich – so much so that the criminal defence bar has begun to use “Vukelich” as a verb and an expletive, as in “The Crown Vukeliched us,” he says.

“I think Vukelich is now dead law,” says Martland. The Court has clearly stated that the Crown’s practice of steering these cases out of the system is “inappropriate and not the fair and the proper way of addressing these kinds of motions,” he says.

There were two broad issues before the SCC, says Dlab. The first was whether the defence is entitled to a full hearing on the merits in an application for a judicial stay of proceedings based on state misconduct.

“The defence sought, and was denied, an evidentiary hearing to expose the full extent of the state misconduct,” she says. “The trial judge essentially denied the defence request because she found the crimes Mr. Haevischer had been convicted of to be too serious to warrant a stay of proceedings.”

The second issue was the appropriate “screening standard” that courts should employ in these applications.

“To date, the law across Canada has been unclear in its articulation of the appropriate standard for dismissal of these applications,” says Dlab. “In British Columbia in particular, the Crown has used the summary dismissal too aggressively in the name of efficiency.”

The standard by which trial judges can summarily dismiss applications in criminal cases is based on the underlying values of trial efficiency and fairness, said Justice Sheilah Martin, who wrote the reasons. The party moving for dismissal must persuade the judge that the underlying application is manifestly frivolous, which requires that “fundamental flaws are apparent on the face of the record.”

The manifestly frivolous threshold “best preserves fair trials, protects the accused’s right to full answer and defence, and ensures efficient court proceedings,” said Martin. The threshold allows judges to purge the applications the summary dismissal power is designed to eliminate but allows most to be decided on the merits “in proportionate proceedings.”

When asked to dismiss an application in a criminal trial summarily, judges should “err on the side of caution,” especially given the deferential standard of review applicable to case-management decisions, she said.

Martin said an application for a stay of proceedings should explain its factual foundation and indicate the anticipated evidence supporting the alleged facts. When the other side moves for the application’s summary dismissal, the judge should treat these alleged facts and suggested inferences as true and “take the applicant’s arguments at their highest.” She said it is unnecessary to weigh the evidence or decide facts in the process.

“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,” said Martin.

The accused, Haevischer and Johnston, applied for a stay of proceedings for abuse of process, which included allegations of systemic police misconduct compromising their fair-trial rights. Before the application proceeded, the Crown brought a motion for summary dismissal. The trial judge decided that the grounds for the accused’s stay applications were insufficient, dismissed them, and convicted Haevischer and Johnston. But the Court of Appeal quashed the convictions and sent the stay application back to the trial court to be heard in a voir dire.

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