Supreme Court endorses high threshold to dismiss abuse of process applications

On April 28, 2023, the Supreme Court of Canada released its decision in R. v. Haevischer, 2023 SCC 11. In Haevischer, two people charged with criminal offences applied for a stay of proceedings for abuse of process. This is when a judge orders a prosecution to end because the state has compromised the right to a fair trial and undermined the integrity of the justice system. The trial judge rejected Mr. Johnson and Mr. Haevischer’s stay application without hearing full arguments and evidence (a summary dismissal). The CCLA argued the threshold for summary dismissal in a criminal case should be set higher. The Court agreed with the CCLA and other interveners, ruling an application must be “manifestly frivolous” for summary dismissal, which requires an “obvious necessity” it would fail. 

Mr. Johnson and Mr. Haevischer applied for a stay because they said they were held in harsh inhumane conditions and the police engaged in serious misconduct. Mr. Haevischer said his cell was cold, filthy, and smeared with bodily fluids. Both Mr. Johnson and Mr. Haevischer said they were confined to their cells nearly the entire day and night, and their physical and mental health suffered as a result. They also said the police lost evidence in their case and endangered the safety of witnesses. 

As the Supreme Court explained at paragraphs 56 and 73 of the decision, a high standard to summarily dismiss an application is important to protect Charter rights and the public: 

[56] 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). 

[73] … [A]pplications 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 37; Canada (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. 

You can read the Supreme Court’s decision here and the CCLA’s factum here. 

The CCLA is grateful to Andrew Matheson and Natalie V. Kolos of McCarthy Tétrault LLP for their excellent pro bono representation in this case.