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The Surrey Six: A New Test for Summary Dismissal Applications

  • May 31, 2023
  • Clayton Rice, K.C.

The Supreme Court of Canada has ruled that a motion in a criminal proceeding may only be summarily dismissed if it is manifestly frivolous. In a unanimous opinion in the notorious Surrey Six murder case an eight member panel held that this new threshold will best preserve fair trials and ensure efficient court proceedings. It is a rigorous standard that will allow judges to cull the kind of motions the summary dismissal power is designed to exclude and permit most motions to be decided on their merits in proportionate proceedings.

1. Introduction

On April 28, 2023, the Supreme Court of Canada released the opinion in R. v. Haevischer affirming the ruling of the British Columbia Court of Appeal that overturned the decision of the trial judge who dismissed Mr. Haevischer’s application for a stay of proceedings. (here) He claimed that systemic police misconduct and inhumane conditions of confinement he endured while on remand prejudiced his fair trial interests and undermined the integrity of the justice system. On November 19, 2014 Justice C.A. Wedge of the British Columbia Supreme Court had held that the test for summary dismissal was whether an evidentiary hearing would assist in deciding whether the alleged abuses could entitle Mr. Haevischer to a stay. (here) She concluded that the application should be dismissed if the grounds advanced “could not support a stay of proceedings”.

On January 28, 2021, a unanimous panel of the British Columbia Court of Appeal reversed and remitted the case to the trial court for an evidentiary hearing on the application for a stay of proceedings for abuse of process. (here) The panel held that Justice Wedge had imposed “too high a standard” to permit an evidentiary hearing. “The threshold is meant to be low, and it was met in this case,” they said. Although a decision whether to hold an evidentiary hearing is discretionary and entitled to deference on appeal, Justice Wedge had also erred by weighing the evidence, drawing inferences and finding facts on an incomplete record. The ruling by Justice Wedge was discussed by Heather Ferg in a previous post to On The Wire. (here) I will therefore restrict my comments to some key aspects of the controversy addressed by the Supreme Court of Canada.

2. The Surrey Six Murders

On October 19, 2007, six homicides were precipitated by a dispute between Corey Lal, the intended victim, and Jamie Bacon, one of the leaders of the Red Scorpions. The dispute erupted in the context of the drug trade in Surrey, British Columbia. Three members of the Red Scorpions – Mr. Haevischer, Matthew Johnston and “Person X” – went to Mr. Lal’s apartment to kill him. Five other people at the scene were also killed to avoid detection. The forensic evidence established that all six were shot multiple times at close range while lying on the floor. Two different firearms were used. Five years later, Mr. Haevischer and Mr. Johnston were charged with six counts of first degree murder and one count of conspiracy to murder Mr. Lal. Person X pleaded guilty to second degree murder. Although the Crown intended to call Person X as a witness at the Haevischer-Johnston trial, he or she was “ultimately precluded from testifying after an in camera proceeding”. At the conclusion of the trial before Justice Wedge, without a jury, both defendants were convicted on all counts. They then initiated a motion for a stay of proceedings based on the abuse of process doctrine.

3. The Police Investigation

Although the police suspected the Red Scorpions were responsible for the homicides, they believed the only persons who could provide reliable information about what happened would be the participants and their close associates. The investigators therefore developed a “moving witnesses” strategy to “move criminals and their associates from loyalty to their group to loyalty to the RCMP.” Focusing on vulnerable members of the Red Scorpions and girlfriends of Red Scorpions members, the police attempted to “dismantle the inner relationships within the Red Scorpions” and “replace those relationships by building ties between the potential witnesses and themselves.” The strategy called for creating events in the targets’ world with the goal of “putting them in a position where they need to or want to turn to the ‘decent cop’ for help.” By gaining the loyalty of witnesses, the police hoped to obtain their cooperation to solve the who-done-it. The “moving witnesses” strategy became one of the multifaceted allegations of police misconduct on the abuse of process motion.

4. The Stay of Proceedings Issues

I will focus on the abuse of process motion brought by Mr. Haevischer because Mr. Johnston is now deceased. The allegations that grounded the motion fell into three categories. I will only comment on the two categories mentioned above: (a) systemic police misconduct; and, (b) inhumane conditions of confinement.

(a) Systemic Police Misconduct

The allegation of police misconduct asserted that four police officers engaged in “exploitative sexual relationships” with two female protected witnesses. Two of the officers were lead investigators described as “lynchpins” in the efforts to develop and handle witnesses as part of the “moving witnesses” strategy. The applicant claimed that the police mishandled funds, evidence, witnesses, agents and informants. One of the most serious allegations was that the four officers lost evidence and the two lead investigators endangered the safety of two female witnesses by improperly revealing their locations. In her previous post, Ms. Ferg described the police misconduct as an “outrageous example” of collateral targets being selected by the police for the purpose of exploiting their vulnerabilities.

(b) Inhumane Conditions of Confinement

The allegation of inhumane conditions of confinement included the claim that Mr. Haevischer was “deliberately and punitively kept in solitary confinement for 14 months” contrary to ss. 7 and 12 of the Charter of Rights and international human rights obligations. His cell was “cold and filthy, smeared with mucus, feces and blood.” He was confined to his cell for 22 or 23 hours a day with limited opportunities for visits or outside contact. The conditions caused physical deterioration and adverse mental health effects. Both Mr. Haevischer and Mr. Johnston “feared for their sanity.” It was argued that the pretrial mistreatment was part of the “moving witnesses” strategy designed to “create the need for the inmates to seek out police help to change their desperate circumstances.”

5. The Vukelich Application

The ultimate question on the motion for a stay was whether the applicant met the three-pronged Babos test: (a) that there was prejudice to his right to a fair trial or the integrity of the justice system that would be “manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”; (b) that there was “no alternative remedy capable of redressing the prejudice”; and, (c) if there was still uncertainty whether a stay was warranted, the interests in favour of granting a stay outweighed society’s interest in a final decision on the merits. (here) That ultimate question, however, was never answered because of the trial judge’s ruling on a preliminary application for summary dismissal brought by the Crown.

The application for summary dismissal is called a Vukelich application which is heard prior to the underlying motion and is directed at the question: Should the underlying motion be summarily dismissed or should it be allowed to proceed to an evidentiary hearing? The legal standard to be applied on this preliminary question is at the core of the Supreme Court of Canada’s opinion. At stage three of the Babos analysis, Justice Wedge had ruled that this was not one of the “clearest of cases” warranting a stay and an evidentiary hearing on the merits would not assist the court. In R. v. Vukelich, the case that lends its name to this kind of application, the British Columbia Court of Appeal followed the Ontario Court of Appeal in holding that a trial judge can “weed out” groundless motions and decide how those with potential merit should proceed. (here and here)

In Alberta, all pretrial motions in criminal cases must be commenced by a notice in writing containing sufficient particulars to enable the Crown to ensure the availability of relevant witnesses. (here) Rule 14 of the Court of King’s Bench of Alberta Criminal Procedure Rules requires applications under the Charter of Rights to be filed and served seven days before any pretrial conference or sixty days before the trial date, whichever is earlier. (here) And Rule 2.5(3) of the Criminal Rules of the Alberta Court of Justice requires that pretrial motions must be filed and served at least thirty days before the date of the hearing. (here) It is not uncommon for the prosecution agencies in Alberta to bring applications seeking further particulars of the applicant’s motion before applying for its summary dismissal. (here)

6. The Manifestly Frivolous Test

In the result, the Supreme Court of Canada has left no wiggle room on the new standard that motion judges must now apply in ruling on a preliminary application for summary dismissal in a criminal case. The “frivolous” prong of the test “weeds out those applications that will necessarily fail.” It is widely recognized to be a “very low bar”. As the panel stated, “inevitability or necessity of failure” is the key characteristic of a frivolous application. The word “manifestly” captures the concept that the application should be “obvious”. It adds a layer to the “frivolous” standard and indicates that a summary dismissal application should be based on what is “clearly revealed”. The test fulfills the twofold values of trial fairness and trial efficiency. First, it is a rigorous standard that allows judges to “weed out” motions that would never succeed and thus waste court time. Second, it protects trial fairness by ensuring that those motions which might succeed, including novel ones, are decided on their merits.

7. Conclusion

The new analytical framework involves two distinct stages. At stage one, the question is whether, taking the facts and inferences alleged to be true, the party seeking a summary dismissal has demonstrated that the underlying motion is manifestly frivolous. At stage two, if the matter proceeds to an evidentiary hearing, judges must decide the ultimate question of whether the underlying motion succeeds or fails on its merits. Apart from the separate legal standards applied at the two stages, judges will also have to consider whether to entertain a summary dismissal application at all. A Vukelich hearing should only be conducted when it will ensure a proportionate process: one which respects the applicant’s right to be heard, serves trial fairness, actually saves resources and avoids undue delay. The panel emphasized that an abuse of process motion might be manifestly frivolous at either stage one or stage two of the Babos test. In this case, however, when Justice Wedge found that: (a) the allegations of police misconduct would shock the conscience of the community; (b) the integrity of the justice system would be prejudiced by continuing the proceedings; and, (c) no remedy short of a stay was capable of redressing the prejudice, “it should have been clear that the applications were not frivolous, let alone manifestly frivolous.” It was therefore not necessary to engage in the balancing analysis at stage three.

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