While the length of time that a case takes to work its way through the Canadian justice system is often a topic of conversation, not every application warrants a hearing. Instead of waiting months or years for the matter to be heard by the court, a party may alternatively seek to dismiss a matter by applying for summary dismissal. A summary dismissal allows a judge to determine whether or not an application has enough merit to continue making its way through the court system.
A recent decision from the Supreme Court of Canada provides insight into this issue and illustrates what is required in order for a matter to qualify for summary dismissal.
The matter of R. v. Haevischer involved two individuals, “CH” and “MJ,” both of whom were members of a criminal organization known as the Red Scorpions. The group, including CH and MJ, were said to be involved in a high-profile murder with six victims known as the “Surrey Six” killings.
The killings were reported to be retaliation against someone who was selling drugs in an area the Red Scorpions claimed as their turf. The person they suspected of selling drugs, three of his associates, and two innocent bystanders were all shot and killed. CH and MJ were charged with six counts of first-degree murder as well as one count of conspiracy to commit murder. The parties were found guilty of these charges in 2014.
Before the guilty verdict had been reached, CH and MJ asked the trial judge to issue a stay of proceedings. The parties argued that there had been an abuse of process by the Crown relating to allegations of police misconduct that is known as the “moving witness strategy.” This allegation related to a claim that the RCMP attempted to convince witnesses who were hostile to the police to become Crown witnesses. CH and MJ alleged that three officers developed sexual relationships with two witnesses in order ≥to have them testify against the accused. The pair also claimed that the police had mishandled funds, evidence, witnesses, agents, and informants.
The second set of allegations related to the post-arrest conditions experienced by CH and MJ. The parties claimed they were deliberately and punitively kept in solitary confinement for 14 months. They also complained about the conditions of their cells and the 22-23 hours per day they were forced to remain inside the cells.
Following the application by CH and MJ, the Crown asked the trial judge to dismiss the application, before the hearing, on its merits. The Crown’s position was that the application submitted by CH and MJ lacked sufficient detail to warrant a hearing on the matter. The trial judge considered this request by the Crown and allowed CH and MJ to present only some of the evidence they wanted the judge to consider before the full range of evidence would be considered at the hearing. Neither party had an opportunity to cross-examine any key witnesses or provide evidence orally. Written submissions were provided, however, the matter did not proceed to a proper hearing.
The trial judge determined there was no reason to consider the application any further. The trial judge stated that the applications did not sufficiently advance the grounds put forth by CH and MJ, and a full evidentiary hearing would not assist the Court. The trial judge added that even if she decided she believed everything the two had claimed, and even though the alleged misconduct was serious, the crimes they were accused of were so shocking that a say in proceedings would not have been appropriate in the circumstances.
CH and MJ appealed the trial judge’s decision. On appeal, the Court found that the trial judge had not taken the appropriate approach required to make a decision on dismissal. The British Columbia Court of Appeal quashed the convictions of CH and MJ and remitted the stay of applications to the trial court for a proper hearing. The Court found that the trial judge had “imposed too high a standard to permit the applications to proceed to an evidentiary hearing.”
When the case appeared before the Supreme Court of Canada, the Court came to a unanimous decision which Justice Martin wrote. The Court affirmed that an application in a criminal proceeding should only be summarily dismissed when the application is found to be “manifestly frivolous.” The Court noted that this high threshold is in place to preserve fair trials, protect the accused’s right to full answer and defence, and ensure efficient court proceedings. If properly followed, this threshold should allow trial judges to dismiss applications that summary dismissal is designed to dismiss while permitting most applications to be decided on their merits.
The Court also held that a judge must assume the facts alleged by an applicant are true and must take the applicant’s arguments at their highest. A judge should only find that an application is manifestly frivolous if the applicant cannot point toward any anticipated evidence that could establish a necessary fact.
The Court found that the applications in this case were not manifestly frivolous, in part because of the seriousness of their nature. As such, the trial Court was ordered to conduct an evidentiary hearing on only CH’s application for a stay of proceedings, as MJ had died in the time it took the matter to be decided.
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