This week’s top three summaries: R v Haevischer, 2023 SCC 11: #summary dismissal & voir dires, R v Hanan, 2023 SCC 12: 11(b) defence unavailability, and R v JW, 2023 ONCA 304: fabrication & independent evidence.

This week's top case deals with Charter voir dires. For great general reference on the law of Charter remedies, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.

R. v. Haevischer, 2023 SCC 11

[April 28, 2023] Vukelich - Summary Dismissal, Voir Dire Format in Discretion of the Trial Judge [Reasons by Martin J. with Wagner C.J.,  Karakatsanis, Côté, Rowe, Kasirer, Jamal and O'Bonsawin JJ. concurring]

AUTHOR’S NOTE: Manifest frivolity is now the test for summary dismissal of applications. Beyond being perhaps the most definitive statement from the Supreme Court that law cannot be fun, the standard is meant to prevent summary dismissal of applications that have a chance of success with a proper evidentiary foundation. There can be little debate with the Court's conclusion that having hearings to determine if you would have hearings about what the evidence at a trial would be allowed to be could be a waste of everyone's time. However, while the benefit of fulsome arguments on the merits of any application is apparent, the second portion of this decision appears to be a real potential can of worms. The Court's open door invitation for trial judges to determine the format of any voir dires may end up driving unreviewable discretionary decisions that limit the full hearing of evidence on voir dires. Judges may agree to voir dires, but prevent viva voce testimony on the voir dires effectively barring defence from using examination to discover further wrong-doing by the state. The devil will be in the details here as the Supreme Court has simply opened the door but has laid out very little guidance on how judges should determine the appropriate format for the particular voir dire. The almost infinite variety of voir dires will mean there will remains significant uncertainty in what format any particular judge will allow. 

I. Overview

[1] In this appeal the Court addresses the standard to be applied in criminal cases when judges are asked to summarily dismiss an application without hearing it on its merits. Specifically, when is it appropriate to summarily dismiss an application for a stay of proceedings for abuse of process?

[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....

[4] In the case at bar, Mr. Johnston and Mr. Haevischer applied for stays of proceedings based on abuse of process; the Crown, in turn, asked for and was granted summary dismissal of the stay applications. 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. I agree with the Court of Appeal for British Columbia that it was an error to summarily dismiss them. Accordingly, I dismiss the appeal....

II. Background

A. The Surrey Six Murders

[5] Mr. Johnston and Mr. Haevischer were tried and found guilty of six counts of first degree murder and one count of conspiracy to commit murder. Committed on October 19, 2007, what became known as the “Surrey Six murders” were precipitated by a dispute over the drug trade in Surrey, British Columbia, between Corey Lal, the intended victim, and James (Jamie) Bacon, one of the leaders of a criminal organization called the “Red Scorpions”. Pursuant to a conspiracy to kill Mr. Lal, three members of the Red Scorpions — Mr. Johnston, Mr. Haevischer and “Person X” — went to Mr. Lal’s drug “stash house”, a suite in a residential apartment building in Surrey, to murder him.

[6] When Mr. Johnston, Mr. Haevischer and Person X arrived at the apartment, they came into contact with Mr. Lal, three of his associates, a gas fitter who was servicing fireplaces in the complex, and a young man who lived across the hall. The latter two victims had no connection to Mr. Lal. Though Mr. Lal was the intended target, the five other victims were also killed to avoid detection. The murders were committed execution-style. The forensic evidence discloses that all six men were shot multiple times at close range while lying on the floor of the apartment and that two different guns were used to kill them.

B. The E-Peseta Investigation and the Charges

[7] These horrific high-profile murders led to a multi-year, large-scale Royal Canadian Mounted Police (“RCMP”) investigation, known as “Project E-Peseta”, which eventually resulted in multiple charges against numerous individuals.

[9] Person X, the third participant in the murders, was unindicted, but pleaded guilty to second degree murder of three of the victims and conspiracy to murder Mr. Lal. The Crown had intended to call Person X as a witness at Mr. Johnston and Mr. Haevischer’s trial, but Person X was ultimately precluded from testifying after an in camera proceeding conducted in the absence of Mr. Johnston and Mr. Haevischer.

[10] Quang Vinh Thang (Michael) Le and Mr. Bacon, leaders of the Red Scorpions, were charged with the murder of Mr. Lal and with conspiracy to murder Mr. Lal. Mr. Le pleaded guilty to the conspiracy charge in December 2013 and testified in the trial against Mr. Johnston and Mr. Haevischer....

[11] Person Y, a Red Scorpions member, was another co-conspirator. He acted as a police agent during the investigation in exchange for immunity from prosecution for the Surrey Six murders. However, he subsequently pleaded guilty to two unrelated first degree murders.

[13] According to the material filed in the record, the investigators developed the “moving witnesses” strategy to “move criminals and their associates from loyalty to their group to loyalty to the RCMP” (A.R., vol. XIV, at p. 36). Focusing on vulnerable members of the Red Scorpions and girlfriends of Red Scorpions members, the RCMP attempted to “dismantle the inner relationships within the Red Scorpions” and “replace those relationships by building ties between the potential witnesses and themselves” (p. 37). The strategy called for “maximizing” or “creating” events in the targeted individual’s world, “[w]ith the goal of putting them in a position where they need to or want to turn to the ‘decent cop’ for help” (p. 32). By gaining witnesses’ loyalty, the RCMP hoped to obtain their cooperation to solve the murders.

D. Applications for a Stay of Proceedings for Abuse of Process

[16] Before convictions were entered, both defence counsel applied for a stay of proceedings for abuse of process based on the test set out by this Court in R. v. Babos 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 32.

[17] A stay is an extraordinary remedy reserved for the “clearest of cases” (Babos, at para. 31). The defence claimed that egregious police conduct caused prejudice to Mr. Johnston’s and Mr. Haevischer’s rights to a fair trial and undermined the integrity of the justice system. The allegations fall into three basic categories. The first two, which were raised by defence counsel, are (1) systemic police misconduct; and (2) the inhumane conditions of confinement Mr. Johnston and Mr. Haevischer experienced while on remand. The third category contains the sealed arguments made by the amici.

[18] The first category contained multifaceted allegations of police misconduct. Mr. Johnston and Mr. Haevischer challenged the investigation’s use of the “moving witnesses” strategy, characterizing it as “extremely aggressive” (2014 BCSC 2172, 321 C.R.R. (2d) 192, at para. 29). Additionally, they alleged criminal and other misconduct by officers involved in the E-Peseta investigation. In particular, Sgt. Brassington, S/Sgt. Attew, and two other officers engaged in exploitative sexual relationships with two female protected witnesses. Notably, Sgt. Brassington and S/Sgt. Attew were lead E-Peseta investigators who were “lynchpins” in the efforts to develop and handle witnesses as part of the “moving witnesses” strategy. Finally, they alleged that the police mishandled funds, evidence, witnesses, agents and informants. Among the most egregious allegations were that the four officers who committed misconduct lost evidence and that S/Sgt. Attew and Sgt. Brassington endangered the safety of two female witnesses by improperly revealing their whereabouts.

[19] The second category of allegations related to Mr. Johnston’s and Mr. Haevischer’s post-arrest conditions of confinement. Defence counsel submitted that Mr. Johnston and Mr. Haevischer were deliberately and punitively kept in solitary confinement for 14 months, in harsh and inhumane conditions, contrary to ss. 7 and 12 of the Canadian Charter of Rights and Freedoms and to international human rights obligations. Mr. Haevischer’s cell was cold and filthy, smeared with mucus, feces and blood. Mr. Johnston’s cell, for months, had no natural light. Both were confined to their cells, alone, for 22 or 23 hours per day, with extremely limited opportunities for visits or contact. In effect, they were cut off from all contact. These conditions caused physical deterioration and significant adverse mental health effects — both feared for their sanity. Defence counsel alleged this illegal treatment was part of the “moving witnesses” strategy and was designed to create the need for the inmates to seek out police help to change their desperate circumstances.

[20] Mr. Johnston and Mr. Haevischer were only released from solitary confinement after Mr. Bacon, who was kept in similarly horrendous conditions pending trial for the Surrey Six murders, successfully brought an application for habeas corpus seeking release into the general prison population (see Bacon v. Surrey Pretrial Services Centre2010 BCSC 805, 11 Admin. L.R. (5th) 1, at para. 292). McEwan J., who granted Mr. Bacon’s application, strongly condemned these conditions and found the treatment of Mr. Bacon contrary to both ss. 7 and 12 of the Charter .

[21] The third category of allegations was put forward by the amici, who argued an additional ground of police misconduct based on confidential information disclosed during Application No. 65. Their submissions were made in camera and ex parte .

E. The Crown’s Request for a Vukelich Hearing

[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), 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.

F. The Vukelich Hearing Procedure

[25] Wedge J. agreed to conduct the Vukelich hearing requested by the Crown. The summary dismissal motion was heard over six days and was divided into an open portion and an in camera portion. Defence counsel made submissions and tendered exhibits for the open portion. Only the amicimade sealed submissions and filed sealed exhibits during the in camera portion. (Mr. Johnston, Mr. Haevischer and defence counsel did not, and still do not, have access to the sealed material.) In neither the open nor the in camera portion of the hearing was there the opportunity to adduce viva voce evidence or to cross-examine key witnesses.

[26] The written record on the summary dismissal motion was extensive. Multiple exhibits were filed for the open portion of the hearing, including various police documents outlining the RCMP investigative strategy for the E-Peseta investigation and numerous documents regarding Mr. Johnston’s and Mr. Haevischer’s confinement. The sealed exhibits filed for the in camera portion of the hearing were significant and augmented the overall record.

[27] While the open record was large, it did not represent the full range of evidence the defence wanted to place before Wedge J. Defence counsel indicated they wished to elicit additional evidence, should the judge decide to hold a voir dire. They intended to call certain RCMP officers for cross-examination, including those involved in the police misconduct, those who had helped develop the “moving witnesses” strategy, and those involved in decisions to place Mr. Johnston and Mr. Haevischer in solitary confinement. They also intended to call correctional officers for crossexamination regarding the use of solitary confinement and experts to testify as to the impact of solitary confinement on Mr. Johnston’s and Mr. Haevischer’s mental health and physical well-being. Finally, they intended to tender other documents that they thought would materialize once they received full disclosure.

G. The Vukelich Hearing Decision: British Columbia Supreme Court...

[29] Wedge J. stated the test for summary dismissal was whether an evidentiary hearing (i.e., a voir dire) would assist in deciding if the alleged abuses could entitle Mr. Johnston and Mr. Haevischer to a stay. She referred to R. v. Wilder2004 BCSC 304, and R. v. Hamill (1984), 14 C.C.C. (3d) 338 (B.C.C.A.), and concluded that the applications could be summarily dismissed “if . . . the grounds advanced by the applicants could not support a stay of proceedings” (para. 9).

[31] At stage one of the Babos analysis, Wedge J. accepted, for the purposes of the Vukelich hearing, that certain conduct could amount to an abuse of process and that entering convictions in light of that conduct would be harmful to the integrity of the justice system. Certain misconduct of the four officers — engaging in exploitative sexual relationships, endangering the safety of protected witnesses, lying to superiors, and manipulating overtime and expense claims — could constitute an abuse of process....

....Wedge J. also accepted that Mr. Johnston’s and Mr. Haevischer’s conditions of confinement violated their ss. 7 and 12 Charter rights and could amount to an abuse of process....

[32] At stage two of the Babos analysis, Wedge J. accepted, for the purposes of the Vukelich hearing, that there were no alternate remedies for the breaches she identified.

[33] At stage three of the Babos analysis, Wedge J. determined that this was not one of the “clearest of cases” where a stay was warranted (para. 153). On one side of the scale, the misconduct by the four officers was extremely serious. However, the misconduct was not ongoing: the officers were suspended and removed from the investigation. Further, the affected female witnesses were not called at trial, tempering the seriousness of the misconduct. Though the conditions of confinement amounted to serious, prolonged and systemic misconduct that had an immediate and significant impact on Mr. Johnston’s and Mr. Haevischer’s mental and physical health, Wedge J. noted that the conditions were not ongoing, and the state conduct had been judicially criticized by McEwan J. She also accorded weight to the misconduct alleged by the amici(though not the inferences that she had rejected). On the other side of the scale, the crimes were incredibly serious: the circumstances of the offences were shocking, there were six victims, and the motivation behind the murders was a desire to demonstrate the Red Scorpions’ strength, instill fear in rival gangs, and expand the Red Scorpions’ drug business....

[34] Wedge J. concluded that, even if the applications were taken at their highest, the grounds advanced could not support a stay of proceedings. As such, an evidentiary hearing (i.e., a voir dire) on the merits would not assist the court....

III. Analysis

[40] The key question on appeal is whether the trial judge erred in summarily dismissing the stay applications for abuse of process. Answering this question requires this Court to determine the appropriate threshold for the summary dismissal of an application in the criminal law context.

A. Summary Dismissal in the Criminal Law Context

[45] Since 1996, Vukelich hearings have been extended well beyond search warrant cases and are frequently used in criminal trials in British Columbia. While it is more common for the Crown to request a Vukelich hearing to summarily dismiss a defence application, the trial judge’s screening function applies equally to Crown applications, and defence counsel do sometimes request Vukelich hearings (see R. v. Cody2017 SCC 31, [2017] 1 S.C.R. 659, at para. 38R. v. Biring2021 BCSC 2678, at para. 5 (CanLII); R. v. Kuntz-Angel2020 BCSC 1777, at para. 71 (CanLII)).

(2) Underlying Values: Trial Efficiency and Trial Fairness

[46] The standard selected for summary dismissal on a Vukelich-type hearing will be based on the two sets of underlying values at play in such proceedings: trial efficiency and trial fairness. These values coexist and “both must be pursued in order for each to be realised: they are, in practice, interdependent” (R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 27, quoting B.C. Justice Reform Initiative, A Criminal Justice System for the 21st Century (2012), at p. 75).

(a) Trial Efficiency

[49].... Dismissing unmeritorious applications made in the criminal law context helps ensure that trials occur within a reasonable time, which is an “essential part of our criminal justice system’s commitment to treating presumptively innocent accused persons in a manner that protects their interests in liberty, security of the person, and a fair trial” (Jordan, at para. 20). “Timely trials impact other people who play a role in and are affected by criminal trials, as well as the public’s confidence in the administration of justice” (para. 22).

[50].... According a high degree of deference to summary dismissal decisions encourages trial judges to take on that responsibility and to exercise this discretionary power where appropriate (see R. v. Samaniego2022 SCC 9, at para. 25R. v. Edwardsen2019 BCCA 259, at para. 75 (CanLII); R. v. Orr2021 BCCA 42, 399 C.C.C. (3d) 441, at paras. 53-54).

[52] 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....

[54] Clearly, it cannot simply be assumed that summary dismissal is a surefire way to increase efficiency. To be practical and take proportionality into account, judges should identify and weigh the full impact of the various procedural options. 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.

(b) Trial Fairness

[56] In criminal cases, trial fairness is more than a policy goal: it is a constitutional imperative. A criminal trial involves allegations made by the state against an accused whose liberty is often at stake. The summary dismissal of criminal applications can curtail the accused’s right to full answer and defence and the right to a fair trial protected by ss. 7 and 11(d) of the Charter by stopping the accused from fully making arguments and eliciting evidence on their application (see Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505; R. v. Rose, [1998] 3 S.C.R. 262). There are, of course, limits to these rights. For example, accused persons are not entitled to a voir dire and, if a voir dire is granted, are not entitled to whatever style of voir dire they would prefer (Vukelich, at para. 26). The trial judge decides if and how the voir dire proceeds and whether it should include an evidentiary hearing. Nevertheless, summary dismissal of applications made in the criminal law context implicates and, in certain circumstances, can curtail the accused’s rights.

[58] Concerns about trial fairness can arise in numerous ways. Setting too lax a standard for summary dismissal risks the dismissal, based on a limited or incomplete record, of applications that might have proved successful after a full hearing on the merits. This risk becomes particularly salient where a party puts forward novel arguments which may carry significant precedential value and allow the law to develop. As recognized in the civil context, “[t]he approach must be generous and err on the side of permitting a novel but arguable claim to proceed” (Imperial Tobacco, at para. 21). This concern applies with equal force in criminal cases: courts have acknowledged the risk of stifling novel claims, given that “the contours of constitutional rights are settled through the litigation of emerging, unresolved and contentious issues” (R. v. McDonald2013 BCSC 314, at para. 44 (CanLII); Teal Cedar Products Ltd. v. Rainforest Flying Squad2022 BCSC 429, at paras. 14-15 (CanLII)). Certain interveners pointed out that a novel application might require full evidentiary exploration for the issues to properly emerge. I agree.

B. The “Manifestly Frivolous” Threshold for Summary Dismissal

(2) The “Manifestly Frivolous” Threshold

[66] I conclude that the appropriate standard for summary dismissal is whether the underlying application is manifestly frivolous....

[67] 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. Oland2017 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....

[68] Aside from the inevitability or necessity of failure, the “frivolous” standard has captured a compendium of other phrases. It is because it will necessarily fail that a frivolous application has also been described as “not arguable” and as “having no basis upon which it could succeed”. Similarly, saying an application is “doomed to failure” connotes inevitability and is just another way of saying an application is “frivolous” (see, e.g., Armstrong, at para. 38Omar, at para. 31Cobb, at para. 7).

[69] 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.

[70]...In summary dismissal motions, rather than requiring that the accused prove the existence of the Charter violation on an underlying Charter application, the Court of Appeal has required only that the accused demonstrate that it is conceivable that the claim could be allowed (Accurso, at para. 323).

[71] 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.

[72] This standard best serves both the values of trial efficiency and trial fairness....

[73] The “manifestly frivolous” threshold also protects fair trial rights by ensuring that those applications which might succeed, including novel claims, are decided on their merits. Protecting fair trial rights is always important, but takes on added significance when the application in question carries great consequences. Generally speaking, the greater the consequences associated with a given application, the greater the possible impact on an accused’s rights if the application is summarily dismissed. Certain applications carry more significant consequences simply because of their nature and the issues they raise. For example, applications for a stay of proceedings based on abuse of process are of enormous import for an accused and the public. They often involve serious allegations of egregious state misconduct and always call for serious consequences, namely, a permanent halting of the prosecution (Babos, at paras. 30, 35 and 37Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, at para. 91). Similarly, an underlying application might allege breaches of an accused’s Charter rights, such that its summary dismissal prevents the accused from litigating those rights in the course of trial.

(4) Applying the “Manifestly Frivolous” Standard

[83] On the summary dismissal motion, the judge must assume the facts alleged by the applicant to be true and must take the applicant’s arguments at their highest (Vukelich, at para. 26Armstrong, at para. 8Gill (BCSC), at para. 24). While there is no need to weigh the evidence or decide any facts on the summary dismissal motion, the applicant’s underlying application should explain its factual foundation and point towards anticipated evidence that could establish their alleged facts. Where the applicant cannot point towards any anticipated evidence that could establish a necessary fact, the judge can reject the factual allegation as manifestly frivolous.

[84] Likewise, the judge ought to generally assume the inferences suggested by the applicant are true, even if competing inferences are proffered. The judge should only reject an inference if it is manifestly frivolous, meaning that there is no reasoning path to the proposed inference. This might be the case where a necessary fact underpinning the inference is not alleged or if the inference cannot be drawn as a matter of law (e.g., if the proposed inference is based on impermissible reasoning).

[85] A similar approach is taken to the overall application. Because the truth of the facts alleged is assumed, an application will only be manifestly frivolous where there is a fundamental flaw in the application’s legal pathway: the remedy cannot be reached. For example, an application may be manifestly frivolous because the judge has no jurisdiction to grant the requested remedy (see, e.g., Lehr, at paras. 27-32). Alternatively, the application could put forward a legal argument that has already been rejected: applications that depend on legal propositions that are clearly at odds with settled and unchallenged law are manifestly frivolous (see, e.g., Lehr, at paras. 22-23).

[86] An application may also be manifestly frivolous where the remedy sought could never issue on the facts of the particular application. The nature of the application will be relevant to this analysis. On certain applications, the trial judge may be able to assume the facts put forward by the applicant and, assuming those facts, determine whether the remedy sought could issue. Garofoli applications, where trial judges ask if the ITO could still support the issuance of the search warrant even if the challenged portions of the ITO are excised, make the point. Where the ITO still supports the issuance of the warrant, then the application can be summarily dismissed because, even if the defence could prove that the impugned portions of the ITO ought to be struck, the sought-after remedy (the exclusion of evidence obtained under the warrant) would not follow.

[89] Finally, the trial judge’s power to summarily dismiss an application is ongoing. Even if the judge permits the application to proceed to a voir dire, the judge retains the ability to summarily dismiss the application during the voir dire if and when it becomes apparent that the application is manifestly frivolous (Cody, at para. 38, citing Jordan, at para. 63). This may occur if the applicant is unable to elicit any evidence, contested or otherwise, to prove a necessary fact.

(5) The Burden Rests on the Party Seeking Summary Dismissal

[90] On a motion for summary dismissal, the party moving for summary dismissal bears the burden of convincing the judge that the underlying application is manifestly frivolous.

[92] If, without a motion from a party, a trial judge exercises the case management power to hold a summary dismissal hearing, the burden still rests on the party opposing the underlying application (i.e., the party who would benefit from the application’s summary dismissal). If the party demonstrates that the application is manifestly frivolous, the judge can summarily dismiss the application.

(6) Minimal Record on Summary Dismissal Motions

[93].... Given the different rules of procedure that apply across the provinces and territories, and given that a trial judge has discretion to determine how an application should unfold, the approach to a summary dismissal hearing should involve “a flexible rather than a fixed process” (Vukelich, at para. 19; see also Kutynec, at pp. 293-94 and 299).

[94] 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. Some jurisdictions have developed particular rules and approaches to control which applications should be heard in a voir dire....

....Alberta requires all Charter applications to be accompanied by sufficient particulars (see R. v. Dwernychuk (1992), 135 A.R. 31 (C.A.), at paras. 12 and 21R. v. Baker2004 ABPC 218, 47 Alta. L.R. (4th) 152, at para. 11Court of King’s Bench of Alberta Criminal Procedure RulesSI/2017-76, r. 14)....

[95] Material filed on the underlying application, as well as the motion for summary dismissal, will of course form part of the record. The moving party should clearly explain how the underlying application is manifestly frivolous. It is not sufficient to simply advance conclusory statements that the underlying application will not, on the ultimate analysis, result in the remedy — that line of argument inappropriately focuses on the final merits of the underlying application and not on whether it is manifestly frivolous.

[96] In accordance with the principle that an application should only be dismissed if it is manifestly frivolous, any additional material that is filed as part of the record on a summary dismissal motion should be minimal and necessary....

....Counsel should, at minimum, offer particulars as to (1) what legal principles, Charter provisions, or statutory provisions are being relied on and how those principles or provisions have been infringed; (2) the (anticipated) evidence to be relied on and how it may be adduced; (3) the proposed argument; and (4) the remedy requested (Baker, at para. 11Dwernychuk, at paras. 21-22).

[97] On a summary dismissal motion, the party who has brought the underlying application bears the minimal burden of providing the judge with the specifics outlined above through oral or written submissions....

....Depending on local filing requirements, much of this information may already be set out in a notice of application and supporting materials. Counsel’s submissions will be a “useful first step” to supplement that information (Vukelich, at para. 23)....

[98] While counsel’s statements will often be sufficient, sometimes more might be required. I leave it to the discretion of the judge deciding the summary dismissal motion to determine whether something more is required and, if so, what that something more should be. Deciding how the summary dismissal motion proceeds is within the judge’s case management powers. However, the judge should bear in mind that the more material filed, the greater the risk of delay, the greater the risk that the summary dismissal hearing devolves into a scrum over the merits of the underlying application and the greater the risk that the judge inadvertently decides the merits of the application itself (Gill (BCSC), at para. 24).

C. Summary and Framework for Summary Dismissal

[101]....During the first part, when deciding the summary dismissal motion, the question is whether, taking the facts and inferences alleged to be true, the party seeking summary dismissal has demonstrated that the underlying application is manifestly frivolous. If the matter proceeds to a voir dire, then, during the second part, at the conclusion of the voir dire, judges must decide the ultimate question of whether the underlying application succeeds or fails on its merits: Has the applicant met the applicable burden of proof and established the facts necessary to fulfill the legal requirements underlying the requested remedy for the particular application at issue?

[102] These parts are, however, related by more than sequence because, throughout, judges will need to consider how to exercise their discretion and case management powers to ensure justice is done in the circumstances....

....Judges may, for example, direct how motions or the voir dire will be heard, especially whether to do so on the basis of testimony or some other form; direct the order in which evidence is called; restrict cross-examination that is unduly repetitive, rambling, argumentative, misleading or irrelevant; place reasonable limits on oral submissions; direct written submissions; and defer rulings (Samaniego, at para. 22Felderhof, at para. 57). Case management powers also include the ability to revisit prior evidentiary determinations or to allow new applications mid-trial if doing so would be in the interests of justice (R. v. J.J., 2022 SCC 28, at para. 86). A motion by counsel for directions also calls for an exercise of case management powers (J.J., at paras. 103-5).

[103] Quite apart from the separate legal standards applied at the two parts of this process, judges will need to turn their minds to whether they will entertain a summary dismissal motion at all; how that summary dismissal motion should be heard; and how any eventual voir dire will be conducted. These are discretionary decisions taken under judges’ case management powers.

[104]....Additionally, judges must consider whether holding a summary dismissal hearing will be an effective use of court time or if it will actually create delay. Where, for example, the summary hearing would take almost as long as a voir dire on the underlying application, consideration needs to be given to whether fairness, efficiency and respect for the administration of justice more strongly support using the time to deal with the merits of the underlying application rather than devoting resources to matters preliminary to it....

[105] If judges decide to hear the summary dismissal motion, they must also decide how to hear it. Judges must ensure the summary dismissal motion proceeds in a fair and proportionate manner.

[106] If summary dismissal is refused, judges will also be called upon to determine how the voir dire on the underlying application should be conducted, including whether there should be an evidentiary hearing or whether the matter can proceed solely on the basis of argument, an agreed statement of facts or some combination of methods. Allowing an application to proceed to a voir dire is not a free licence to counsel to argue an application however they choose. The time and leeway given to counsel to present and argue the application should be proportionate: just enough to ensure that the application is fairly treated. Beyond that point, additional time and leeway can cause undue delay.

[107]....The values of trial efficiency and trial fairness may be better served by holding a voir dire on the underlying application that is tailored through the use of judicial discretion to only what is necessary for a fair consideration of the substance of the allegations. When judges exercise their case management powers in this way, they fulfill the underlying purposes of case management powers: ensuring that trials proceed in a fair, effective and efficient manner (Samaniego, at para. 21).

IV. Application to This Case

[108] Bearing this framework in mind, the judge erred in summarily dismissing Mr. Johnston’s and Mr. Haevischer’s applications for a stay based on abuse of process. First, the judge failed to assume the truth of the facts and inferences alleged by defence counsel and the amici. Second, the judge applied an insufficiently rigorous threshold for summary dismissal, which led her to engage in the balancing stage of Babos without the benefit of all the evidence on the scope of the state misconduct and to decide the merits of the stay applications on a partial record.

B. Application of an Insufficiently Rigorous Threshold

[115] her analysis, she applied a more merits-based threshold for summary dismissal which was not sufficiently rigorous.

[118] Moreover, the judge conducted the balancing exercise when she could not be sure that she had access to all the necessary evidence. In cases like this, which involve state misconduct, there is a distinct possibility that the extent of the misconduct will be unknown at the summary dismissal stage, and it may well be more serious than alleged. Where the trial disclosure is not relevant to the issues on an application, separate disclosure will likely be necessary to ensure that all material relevant to the application is produced. In addition, the misconduct may only come to light through cross-examination. As acknowledged by the Court of Appeal, certain defence allegations — such as the ones made here — “are such that they can likely only be established through cross-examination” (para. 404; see also R. v. Rice2018 QCCA 198, at para. 64 (CanLII)). This Court has further recognized that cross-examination is a critically important tool and an essential component of the accused’s right to full answer and defence (see, e.g., R. v. Lyttle2004 SCC 5, [2004] 1 S.C.R. 193, at para. 41R. v. Osolin, [1993] 4 S.C.R. 595, at p. 663; R. v. Shearing2002 SCC 58, [2002] 3 S.C.R. 33, at para. 76R. v. N.S.2012 SCC 72, [2012] 3 S.C.R. 726, at para. 64).

[119]....Summarily dismissing a stay application without all the evidence impairs the accused’s right to a fair trial and may undermine public confidence in the administration of justice. Stay applications may allege abuse of the highest order: summarily dismissing them without any opportunity for the applicant to further elicit evidence to substantiate their claims risks compounding any wrongs done by the state to the applicant....

[120] Finally, I agree with the Court of Appeal that the judge slid towards deciding the ultimate merits of the applications. In finding that she would not grant a stay, the judge focused on the merits and on the ultimate outcome rather than on whether the applications were manifestly frivolous. In doing so, she applied too lax a threshold for summary dismissal and conflated the analysis required for the summary dismissal hearing with the analysis she was required to undertake on the voir dire itself.

V. Conclusion

[122] When the above framework is applied, it is apparent that the stay applications were not manifestly frivolous and should not have been summarily dismissed. Accordingly, I dismiss the appeal. In light of Mr. Johnston’s passing, only Mr. Haevischer’s stay application will be remitted to the Supreme Court of British Columbia for hearing at a voir dire. Mr. Haevischer will have the opportunity to argue all the allegations. That Mr. Haevischer should have “a full chance to re-litigate all the issues” if the matter was remitted was agreed to by the Crown in submissions (transcript, at p. 20). That said, I leave how the voir dire ought to be conducted to the hearing judge’s discretion.

Appeal dismissed.

R v Hanan, 2023 SCC 12

[May 5, 2023] Charter 11(b): Defence Availability for Trial Dates [Reasons by Côté and Rowe JJ. with Martin, Kasirer and Jamal JJ. concurring]

AUTHOR’S NOTE: While the Court here spends time on the issue of reasonable reliance on pre-Jordan law, the real nugget for the future is the complete rejection of the Crown's argument that defence counsel's rejection of a single trial date means all of the delay that occurs after that date falls at the feet of the defence. This approach is inconsistent with the Court's expressions about 11(b) delay. Defence counsel do not have to hold themselves out as perpetually available for their clients to maintain 11(b) rights. All of the relevant circumstances must be analysed and the simple rejection of a date is not enough for all of the delay thereafter to fall to the defence. 

[1] This is an appeal as of right from a judgment of the Court of Appeal for Ontario which affirmed the appellant’s convictions by a jury for manslaughter, discharging a firearm with intent to wound, and possession of a loaded restricted firearm without a licence. Two grounds of appeal are raised: first, a violation of the appellant’s right to be tried within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms that would justify a stay of proceedings and, second, an error in the charge to the jury that would require a new trial. We are of the view that the first ground is dispositive, so we decline to address the second.

[2] The events giving rise to the charges occurred on December 23, 2015. The appellant was charged the next day with various offences. The case was eventually scheduled for trial by jury in November 2018, which both parties agreed would be within the ceiling set by R. v. Jordan2016 SCC 27, [2016] 1 S.C.R. 631. However, on the eve of trial, changes to the Crown’s case threatened to adjourn the proceedings. The defence offered to agree to a trial by judge alone, but the Crown refused. It is not disputed that had the Crown agreed to proceed by judge alone as proposed, the trial would have concluded within the Jordan ceiling. Because the Crown did not agree, the trial judge offered a trial date in June 2019, but defence counsel was unavailable. The trial was therefore rescheduled to the autumn of 2019, beginning on October 28, and it ultimately ended on November 28.

[3] The appellant applied for a stay of proceedings. The trial judge calculated total delay as about 47.5 months. He deducted about 10 months for defence delay before committal for trial, and another 1.5 months as a discrete exceptional circumstance relating to issues with the Crown’s evidence. After finding that the complexity of the case did not warrant further delay, the trial judge concluded that the net delay was about 35 months.

[5] In our respectful view, the trial judge erred in holding that a transitional exceptional circumstance applied, and the majority of the Court of Appeal erred in upholding his decision.

[6] First, the parties could not have reasonably relied upon the pre-Jordan state of the law after Jordan had been decided in July 2016. Nor did the parties actually rely upon the pre-Jordan state of the law, as they consciously scheduled a trial within the Jordan ceiling....

[7] Second, as Nordheimer J.A. correctly observed, the Crown had “ample time” to adapt to Jordan (para. 148). The delay beyond the ceiling was due not to a lack of time for the system to ameliorate ingrained institutional delays, but to the Crown’s refusal to agree to a trial by judge alone, despite being warned of the possible consequences of delay, and despite Jordan having been decided almost two and a half years earlier. Were it not for the Crown’s decision, the trial would have occurred within the ceiling. This clearly demonstrates that there was enough time for the parties and system to adapt.

[9] Like the majority and the dissent below, we reject the Crown’s proposed “bright-line” rule according to which all of the delay until the next available date following defence counsel’s rejection of a date offered by the court must be characterized as defence delay. We agree with van Rensburg J.A. and Tulloch J.A., as he then was, at para. 56, that this approach is inconsistent with this Court’s understanding of defence delay. Defence delay comprises “delays caused solely or directly by the defence’s conduct” or “delays waived by the defence” (Jordan, at para. 66). Furthermore, “periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable” (para. 64). All relevant circumstances should be considered to determine how delay should be apportioned among the participants (R. v. Boulanger2022 SCC 2, at para. 8). We share the view of the majority and dissenting judges in the Court of Appeal that, in the circumstances of this case, it is unfair and unreasonable to characterize the entire period between June and October 2019 as defence delay (paras. 59 and 136).

R v JW, 2023 ONCA 304

[May 1, 2023] Judicial Findings of Fabrication by an Accused and Use of Statements not in Evidence [Reasons by Nordheimer J.A. with L. Sossin and J. Copeland JJ.A. concurring]

AUTHOR’S NOTE: In a credibility case, those not involved in the minutiae of the criminal justice system may tend to conflate the rejection of the testimony of an accused with a finding that they fabricated that testimony. However, because of the requirement of proof beyond a reasonable doubt, this cannot be allowed in a criminal proceeding. Simply put, there is space between the two conclusions. That space, in law, is filled with the requirement that there be independent evidence of fabrication of the testimony of the accused. The rejection of the evidence of an accused cannot be used to essentially find the person guilty. This case also provides a factual example of a trial judge using a transcripts of a statement not in evidence to find an accused guilty. The factual underpinning for this scenario occurs quite commonly in the courts: judges ask to see a transcript to follow the cross-examination of a witness or accused. That transcript stays with them afterwards. Of course, that transcript is not evidence before them. The danger of this process is that courts may be affected by the exposure to this material even though it is not evidence before them. Here, the judge explicitly used the statement in the judgment. 


[3] On Saturday, December 31, 2016, the appellant attended a New Year’s Eve party at a home outside of Thornton, Ontario. The complainant attended the same party with her boyfriend. There were between 20 and 25 people at the party. At approximately 1:00 a.m., the complainant and her boyfriend went to a spare bedroom upstairs, where a host prepared a bed for the complainant and her boyfriend. Her boyfriend remained with the complainant until she fell asleep and then returned to the party. Approximately an hour and a half later, the appellant, who had been confusingly told that he could sleep in the same bedroom, went to the bedroom.

[4] The appellant and the complainant provided different accounts of what occurred once the appellant arrived in the bedroom. The complainant testified that she woke up and found herself resting on her forearms and knees. Someone was spreading her buttocks and licking her anus. She then fell unconscious. When she came to, her underwear had been removed and she was being digitally penetrated. She fell unconscious again. When she awoke again, the person was having intercourse with her. Now fully awake, she jumped up, said, “[y]ou’re not my boyfriend, you’re not who I thought you were” and ran downstairs.

[5] The appellant testified that he went into the bedroom and realized there was another person under the covers of the bed. He got into the bed and laid on top of the covers on the other side of the bed. The complainant backed into him as if to want to cuddle. The appellant got under the covers and, after cuddling in a spooning position, the complainant turned over to kiss him. He then moved his hand onto the complainant’s hip and moved it up and down her leg. She removed her underwear, and he digitally penetrated her. He then removed his underwear and the complainant touched his penis and they had sex for approximately five minutes. Then the appellant told the complainant to get on top of him. At this point, the complainant moved away from him, asked who he was, and left the bedroom.

[6] The appellant gave a statement to the police following his arrest. The statement was never admitted as evidence at the trial in the form of an exhibit or otherwise. The Crown put parts of the statement to the appellant in cross-examination. During the cross-examination, the trial judge requested a transcript of the police statement so she could follow along while passages from it were put to the appellant by the Crown. The transcript was provided to the trial judge. The trial record shows that the trial judge did not return the transcript until the outset of giving her reasons for convicting the appellant. At that time, she said:

I have a copy of the transcript of [J.W.]’s statement to give back to you. I do not need it anymore, thank you.

[7] The appellant brought a motion to admit his statement to the police, both the videotape and transcript of it, as fresh evidence on the appeal. The respondent consented to the motion.

Grounds of appeal

[8] The appellant raises two of grounds of appeal. First, he says that the trial judge relied on portions of his police statement that were not in evidence in rejecting the appellant’s evidence of the complainant’s conduct prior to the alleged sexual touching. Second, the appellant says that the trial judge found that the appellant concocted his evidence without independent evidence of fabrication. In my view, both grounds of appeal are made out.

A. Reliance on the police statement

.....the Crown used a limited number of excerpts from it during the cross-examination of the appellant. Nevertheless, it is apparent that the trial judge relied on other portions of the statement in reaching her conclusions, especially as they related to the appellant’s credibility.

[10] For example, one of the central issues was whether, and when, the complainant engaged in kissing the appellant. It related directly to the appellant’s defence of honest but mistaken belief in consent. There was a similar issue regarding if, and when, the complainant touched the appellant’s penis. On these points, in her reasons, the trial judge said:

This is different from [J.W.]’s statement to the police. When he was first asked by the investigating officer what happened, he did not mention any kissing to have occurred before he started to rub up and down her leg and buttocks. It was only later in the interview that he added that detail. Nor did he mention that she touched his penis at any point.

[21] Had the trial judge appreciated that she was relying on matters that were not in evidence, and thus could not use those matters to provide the basis for the findings that she made, her view of the appellant’s credibility might well have been different. If so, the defence of honest but mistaken belief might well have carried the day. Certainly, it might have been capable of raising a reasonable doubt. None of those possibilities came into play, however, because of the erroneous findings of the trial judge.

B. Fabrication

[22] I earlier mentioned that the trial judge very strongly rejected the appellant’s evidence. Indeed, in rejecting the appellant’s evidence about the kissing and the touching of his penis, the trial judge said:

I find, as a fact, that neither thing is true but rather have been invented after the fact to support the notion that the woman in the bed was fully participating.

[23] The trial judge’s statement amounts to a finding that the appellant fabricated his evidence. It is not a matter of simply disbelieving the appellant but, rather, goes the extra step of finding that his evidence was concocted in an effort to escape liability.

[24] It is well-established that a trier of fact may not use the disbelief of an accused person’s evidence as capable of supporting an inference of guilt, unless there is independent evidence of fabrication to avoid culpability: R. v. Iqbal2021 ONCA 416, at paras 52-58.

[25] There was no such independent evidence in this case, nor does the trial judge refer to any. The respondent submits that the trial judge simply disbelieved the appellant and did not use her rejection of his evidence as supporting an inference of guilt. I do not agree. The trial judge referred in the course of her reasons to the appellant raising a “victim-blaming argument”. She also found that the appellant was both reckless and wilfully blind to whether the complainant was consenting to the sexual contact. A plain reading of the trial judge’s reasons reveals that her view that the appellant had concocted his version of the events factored heavily into these conclusions which, in turn, led to her finding that the defence of honest but mistaken belief was not available to the appellant.


[28] I would allow the appeal, set aside the conviction, and order a new trial before a judge and jury as the appellant requested pursuant to s. 686(5)(a) of the Criminal Code.