SCC rules only ‘manifestly frivolous’ stay motions for abuse of process may be summarily dismissed

By Cristin Schmitz

Last Updated: Friday, April 28, 2023 @ 5:06 PM

Law360 Canada (April 28, 2023, 4:02 PM EDT) -- The Supreme Court of Canada has set a “rigorous standard” for summary dismissal of defence motions in criminal cases, ruling 8-0 that applications, including applications for stays of proceedings for abuse of process, should only be screened out at a Vukelich-type hearing, i.e. without a voir dire on their merits, if the court is satisfied that the applications are “manifestly frivolous”.

Rejecting the British Columbia Crown’s appeal April 28, Justice Sheilah Martin affirmed the B.C. Court of Appeal’s decision, R. v. Johnston, 2021 BCCA 34, to quash six convictions for first-degree murder and one conviction for conspiracy to commit murder, that were entered against two co-accused in the 2007 “Surrey Six” execution-style shootings sparked by a dispute over the drug trade in Surrey, B.C.

The Supreme Court affirmed the B.C. Appeal Court’s decision to send the defence’s abuse of process stay applications — which allege egregious misconduct by police and prison authorities — back  to the trial court to be addressed on the merits in a voir dire: R.v. Haevischer, 2023 SCC 11.

Justice Sheilah Martin

Justice Sheilah Martin

In 2014 the trial judge had allowed the Crown’s request for summary dismissal at the preliminary “Vukelich” screening stage, which included the tendering of exhibits and extensive submissions from defence counsel, but not the viva voce evidence and cross-examination of police officers and other key witnesses that the defence wanted to put forward in a voir dire to support its stay application. The trial judge concluded that the defence abuse of process applications, taken at their highest, could not support a stay of proceedings, given the seriousness of the crimes committed, and therefore should not move on to a voir dire: R. v. Haevischer, 2014 BCSC 1863.

The Supreme Court of Canada ruled that the trial judge erred by: failing to take the alleged facts and inferences as true; applying a “more merits-based” threshold for summary dismissal that was not sufficiently rigorous; and by focusing on the merits, and on the ultimate outcome, rather than on whether the applications were “manifestly frivolous” – the applicable standard.

“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,” Justice Martin held. “I agree with the Court of Appeal for British Columbia that it was an error to summarily dismiss them.”

Justice Martin’s judgment settles jurisprudential debate and considerable confusion over the proper threshold to be met for summary dismissal of applications in the criminal law context.

The court adopts the rigorous “manifestly frivolous” standard, and rejects formulations proposed by the Crown and some interveners, such as “no reasonable prospect of success” and “no reasonable likelihood of assistance” (which are flawed as they may draw judges into the merits-based analysis reserved for a voir dire).

Justice Martin noted that Vukelich-type screening hearings seeking summary dismissal of applications in criminal cases are commonly requested by the Crown as against the defence; however the trial judge’s screening function “applies equally to Crown applications” at Vukelich hearings that defence counsel sometimes request.

(Vukelich screening hearings, which originated in B.C. but exist in similar forms elsewhere, occur before a court hears the merits of the underlying application and ask: should the underlying application be summarily dismissed or should it be allowed to proceed to a voir dire?)  

Justice Martin’s judgment summarizes the applicable framework for summary dismissal motions, and details what the “manifestly frivolous” standard means; how it is to be applied; who bears the burden on a summary dismissal motion; and what type of record should be filed.

The Supreme Court also stipulates that the “manifestly frivolous” standard is intended to be a clear standard applicable to summary dismissal motions brought in the criminal law context that are not otherwise subject to a legislated or judicial threshold.

The “manifestly frivolous” standard does not, for example, have an impact on applications brought under Criminal Code s. 685(1) concerning frivolous appeals or on s. 679 applications for bail pending an appeal (including Oland), Justice Martin explained. “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.”

Brock Martland, Martland & Saulnier

Brock Martland, Martland & Saulnier

Brock Martland of Vancouver’s Martland & Saulnier, who with Jonathan Desbarats, Daniel Song and Elliott Holzman represented one of the co-accused (Matthew Johnston who died after the appeal was argued last October), hailed the top court’s judgment as a key win for the defence bar. He predicts it will stymie the routine use by the Crown of Vukelich hearings to knock out defence Charter motions.

“From the defence point of view, this is a very important decision that isn't limited specifically to this case, or indeed to situations where somebody is seeking an abuse of process remedy like a judicial stay of proceedings,” Martland told Law360 Canada. “It really speaks more broadly to applications under the Charter of rights and conceivably other applications, where the Crown brings a preliminary screening motion to try to short-circuit the process to try to stop the defence from being able to move that argument or application forward.”

Defence motions that could be attacked via summary judgment include “creative arguments related to an unlawful detention, an unlawful search of a person after arrest, validity of a search warrant or a production order or a wiretap order,” he suggested. “Any sorts of arguments that get into the question of assessing: is there a Charter of rights breach? Is there some improper state conduct, usually police conduct, that should support a remedy for the accused person?

“All of those kinds of situations, I think, across the board, are subject to the rule in the Haevischer decision.”

“I would go so far as to say that Vukelich is dead — the case that has become a verb in this province, which I want to say, is a swear word,” Martland added. “We would say ‘I got Vukeliched or they’re going to try to Vukelich us’,” he explained. “That's no more. It’s not to say it can't happen in an appropriate case with a manifestly frivolous defence application, but it will be very hard for the Crown to do that with any regularity.”

Martland said Justice Martin’s judgment gives “true clarity in this area of the law. A unanimous case that sets out a clear and understandable standard, and that explains the rationale for it, that justifies why that is the necessary standard. I think that's incredibly useful.”

He predicted “in a sense, the decision will have more influence within Crown counsel offices, as opposed to defence firms and offices, and by that I mean simply that I would assume that Crown prosecution services across the country will have to reassess whether it’s appropriate to bring this sort of preliminary screening application and applying good judgment, in a great many cases the Crown will not bring an application they would have brought a year ago.”

B.C. Crown counsel Mark Levitz, whose co-counsel were Geoff Baragar and Mark Wolf, could not be reached immediately for comment.

Justice Martin said the important issue of the threshold for summary dismissal motions “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,” the ex-law dean and criminal defence counsel said. “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.”

Justice Martin held that 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,” she reasoned. “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.”

Justice Martin explained that the “manifestly frivolous” standard “connotes the obvious necessity of failure.”

“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,” she said.

The Independent Criminal Defence Advocacy Society, one of seven interveners in the appeal, had asked the Supreme Court to rein in what it contends is the overuse of Vukelich hearings by the Crown in B.C., and to emphasize the need for efficiency within summary dismissal hearings. “They should be reserved for situations only where there is a credible argument that a proposed voir dire is frivolous. In other words, a waste of the court's time,” the intervener argued. “Such restraint is consistent with the purpose of preserving scarce judicial resources, without sacrificing trial fairness on the altar of efficiency.”  Nor should Vukelich hearings “consume more time than they save. They should not involve arguing every conceivable point of fact or law the Crown could advance at the end of a voir dire. They should be a simple, efficient screening mechanism to weed out patently unmeritorious applications. Nothing more.”

Commented Justice Martin, “unfortunately, a review of the jurisprudence reveals that, as Vukelich hearings proliferated, becoming almost routine, their animating goal of increasing trial efficiency has not been realized in practice. In many cases, they are unnecessarily lengthy and veer towards the merits of the underlying application.”

She acknowledged that a Vukelich hearing insisted upon by the Crown may devolve into a protracted pre-hearing examination of the minutiae of the accused’s application and result in the repetition of arguments on the ultimate voir dire. In the result, the hearing unnecessarily consumes the very scarce resources that the hearing itself was designed to avoid wasting.

“Clearly, it cannot simply be assumed that summary dismissal is a surefire way to increase efficiency,” Justice Martin wrote. “To be practical and take proportionality into account, judges should identify and weigh the full impact of the various procedural options,” she advised. “The resources that may be notionally saved by not hearing the main underlying application are simply a part of the picture. Judges must also factor in their extensive case management powers, which allow them to control the trial and the process and procedure of the underlying application. These powers go a long way towards tempering legitimate concerns over prolix trials, fishing expeditions, disproportionate processes and undue delay. They are not a full answer, but they play an important role because they encourage the tailoring of proportionate proceedings.”

Photos of Justice Sheilah Martin by SCC Collection

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