R v Haevsicher, 2023 SCC 11
The Issue
What is the standard to be applied when a judge is asked to summarily dismiss an application without hearing it on the merits. In this case, the more precise question is “when is it appropriate to summarily dismiss an application for a stay of proceedings for abuse of process”.
The Answer
Applications should only be summarily dismissed, without a hearing on the merits, where it is determined that the application is manifestly frivolous. The Court explained:
Thus, the “manifestly frivolous” standard, which connotes the obvious necessity of failure, is the appropriate threshold for the summary dismissal of applications made in the criminal law context. 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. [Para 71].
The Details
The Court began with a review of the history and development of the summary dismissal power. Naturally, as the case originated from BC, the Court discussed R v Vukelich, 1996 CanLII 1005.
In coming to the conclusion that “manifestly frivolous” was the proper standard, the court explained the impact of this terminology”
The “frivolous” part of the standard weeds out those applications that will necessarily fail. This Court has previously stated that the “‘not frivolous’ test is widely recognized as being a very low bar” (R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20). Having reviewed the case law on the “not frivolous” threshold, inevitability or necessity of failure is the key characteristic of a “frivolous” application.
[…]
However, I add the word “manifestly” to capture the idea that the frivolous nature of the application should be obvious. “Manifestly” is defined as “as is manifest; evidently, unmistakably, openly”, and “manifest” is defined as “[c]learly revealed to the eye, mind, or judgement; open to view or comprehension; obvious” (Oxford English Dictionary (online)). Just like the civil standard for striking a claim requires that it be “plain and obvious” that the claim discloses no reasonable cause of action (or, in French, “évident et manifeste”), the addition of the word “manifestly” adds another layer to the “frivolous” standard and helpfully indicates that a summary dismissal motion should be based on that which is clearly revealed. [Paras 67-69].
The Court offered several points of guidance in relation to the scope and application of this test. First, the judge on the application must assume the facts alleged to be true and take the argument at its highest [para 83].
Second, the judge should generally assume the inferences suggested are true [para 84].
Third, as a rule, given the approach set out in these first two points, an application will generally only be manifestly frivolous where there is a fundamental flaw in the “legal pathway”. As an example, if the application relies on an argument already rejected or seeks a remedy unavailable [paras 85-86].
Fourth, the judge’s power to summarily dismiss a motion is ongoing.
Fifth, the party seeking dismissal bears the onus of convincing the judge the application is manifestly frivolous.
Sixth, as a “preliminary matter, the party filing the underlying application must ensure that their application complies with the local court rules and the applicable practices, directives and procedures” [para 94]. The Court noted, as an example, that Ontario “incorporated the power to summarily dismiss an application into its rules of criminal procedure” [para 94].
Seventh, the judge has discretion to determine how the summary dismissal process will be determined - as well as how the actual motion will be considered [para 103].