Mark K. Levitz

The Crown appealed a Court of Appeal decision restoring stay applications for abuse of process that a trial judge had summarily dismissed following a Vukelich hearing.

The accused had alleged systemic police misconduct and inhumane conditions of confinement prejudicing their right to a fair trial.

The Supreme Court of Canada dismissed the Crown's appeal and held that the correct threshold for summary dismissal of applications in the criminal law context is whether the application is manifestly frivolous — a rigorous standard requiring that the frivolous nature of the application be obvious on the face of the record.

The trial judge erred by failing to assume the truth of the alleged facts and inferences and by applying an insufficiently rigorous threshold that slid towards the merits of the underlying applications.

Police unlawfully entered the accused's residence through an unlocked rear door to arrest him for robbery and firearms-related offences, then conducted a clearing search and subsequently obtained a search warrant based in part on observations from that search.

The trial judge found Charter breaches but admitted the evidence, holding the warrant valid.

The Court of Appeal majority excluded the evidence and ordered a new trial, finding the trial judge erred by treating Charter-compliant conduct as mitigating Charter-infringing conduct and by conducting overall balancing within the first two Grant factors rather than at the end.

The Supreme Court dismissed the Crown's appeal, agreeing the trial judge further erred by failing to consider all relevant Charter-infringing state conduct, including the clearing search, under the first Grant factor.

The Court affirmed that trial judges cannot selectively choose which Charter-infringing conduct to consider, and that overall balancing under s. 24(2) must occur only after all three Grant factors have been individually assessed.