|
Criminal - Summary Dismissal of Application. R. v. Haevischer
In R. v. Haevischer (SCC, 2023) the Supreme Court of Canada considered the test for summary dismissal (ie. without a merit hearing) of an application, here a defence application for a stay grounded in abuse of process:[2] There is a clear consensus in courts across Canada that trial judges have the power to summarily dismiss applications made in the criminal law context in certain circumstances. However, the national case law is divided about the proper threshold to be applied. It is time for this Court to provide guidance on this important issue, which 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. 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.
[3] As a result, 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. 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.
....
E. The Crown’s Request for a Vukelich Hearing
[22] In the normal course, these stay applications would be heard in a separate hearing within the trial called a “voir dire” (R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at paras. 30-31; Erven v. The Queen, 1978 CanLII 19 (SCC), [1979] 1 S.C.R. 926, at pp. 931‑32).[1] At the end of the voir dire, the judge would decide whether the applications succeed or fail on their merits, answering the ultimate question, which is “have the applicants met the applicable burden of proof by establishing facts that fulfill each of the legal requirements of the requested remedy?” In the case at bar, the judge would need to decide whether the applicants have met all three parts of the Babos test such that stays of proceedings are warranted in the circumstances.
[23] This ultimate question was never answered because the Crown requested that the judge instead first hold the type of hearing described in the British Columbia jurisprudence in R. v. Vukelich (1996), 1996 CanLII 1005 (BC CA), 78 B.C.A.C. 113. Other provinces have similar procedures under different names. A Vukelich hearing occurs before the court hears the merits of the underlying application and is directed to a very different question: Should the underlying application be summarily dismissed or should it be allowed to proceed to a voir dire? The appropriate standard to be applied for this preliminary question about summary dismissal lies at the heart of this appeal.
[24] In this case, the Crown’s basis for requesting summary dismissal at a Vukelich hearing was that neither defence application disclosed “a sufficient foundation to establish that an evidentiary hearing is necessary or will assist the Court in determining the merits of the application” (A.R., vol. XIV, at p. 22). Even if the allegations were true, the Crown contended that either they would not meet the standard for an abuse of process or they would not amount to the clearest of cases justifying the imposition of a stay. At paras 43-107 the Supreme Court of Canada extensively reviews the Vukelich (summary proceeding) procedure.
|
