In Criminal Cases, Only "Manifestly Frivolous" Applications May Be Summarily Dismissed: Supreme Court Of Canada

• Jurisdiction: Canada
• Law Firm: McCarthy Tétrault LLP
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Criminal Law, Constitutional & Administrative Law, Trials & Appeals & Compensation, Crime
• Author: Canadian Appeals Monitor, Andrew Matheson and Natalie Kolos
• Published date: 29 May 2023

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.

Case Background

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...