Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In R. v. Haevischer, 2023 SCC 11, April 28, 2023, the accused was charged with the offence of murder.  He applied for a stay of proceedings to be entered, arguing that an abuse of process had occurred.  His application was summarily dismissed by the trial judge and he was convicted. The British Columbia Court of Appeal upheld the finding of guilt, but remitted the matter to the trial judge to consider the abuse of process argument on its merits. The Crown appealed to the Supreme Court of Canada. The Supreme Court described the issue raised as being the following (at paragraph 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?

The appeal was dismissed. The Supreme Court held that “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’” (at paragraph 3). It concluded that the trial judge erred in summarily dismissing the application.

The Manifestly Frivolous Test:

The Supreme Court indicated that “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’…Having reviewed the case law on the ‘not frivolous’ threshold, inevitability or necessity of failure is the key characteristic of a ‘frivolous’ application” (at paragraphs 67).  The Court indicated that it added “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’” (at paragraph 69).

Applying the Standard:

The Supreme Court indicated that on a “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…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” (at paragraph 83).


The Supreme Court concluded that the trial judge “erred in law by applying an incorrect threshold for summary dismissal” and in “deciding the ultimate merits of the applications”. The Court held that “[i]n 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” (at paragraphs 115 and 120).