Judicial Stay of Proceedings
Certain courts have jurisdiction to stay criminal proceedings under s. 24(1) where putting a person on trial would amount to an "abuse of process" and violate the "principles of fundamental justice" under s. 7. The principle of abuse of process arises from the common law. It is now superseded by the Charter.
A Stay of Proceedings is the most drastic of remedies available to a court. As the Supreme Court of Canada stated:
- Charges that are stayed may never be prosecuted; an alleged victim will never get his or her day in-Court; society will never have the matter resolved by a trier of fact. For these reasons, a stay is reserved for only those cases of abuse where a very high threshold is met: "the threshold for obtaining a stay of proceedings remains, under the Charter as under the common law doctrine of abuse of process, the 'clearest of cases'
A stay of proceedings is considered the “ultimate remedy” that is absolutely final, preventing the court from ever adjudicating the matter.
Consequently, there is a high threshold on a stay of proceedings. It is only permissible in the “clearest of cases”.
A clearest of case is one in which the integrity of the justice system is implicated.
If the Crown enters a stay of proceedings on their own is part of the Crown's royal prerogative which is not reviewable by the court.
A stay should not be used "to discipline the police or to attempt to redress a past wrong".
A judge does not have the power to stay proceedings on an electable charge where the defence has yet to enter his election.
Breaches of s. 11(b) are treated differently from other Charter breaches.
- Stay is Mostly a Prospective Remedy
In most cases a stay is intended to be a prospective remedy to prevent future harm. It is only in rare cases of "egregious" misconduct that going forward would be "offensive" that a stay is warranted for past wrongs.
- Standard of Appellate Review
A decision to stay a proceeding under s. 24(1) of the Charter is accorded deference on review.
R v Jewitt, 1985 CanLII 47 (SCC),  2 SCR 128, per Dickson CJ (7:0)
R v Kalanj, 1989 CanLII 63 (SCC),  1 SCR 1594, per McIntyre J (3:2)
R v Power, 1994 CanLII 126 (SCC),  1 SCR 601, per L'Heureux‑Dubé J (4:3)
- R v O'Connor, 1995 CanLII 51 (SCC),  4 SCR 411, per L'Heureux‑Dubé J
- e.g. R v Regan, 2002 SCC 12 (CanLII),  1 SCR 297, per LeBel J (5:4)
see R v Carosella, 1997 CanLII 402 (SCC),  1 SCR 80, per Sopinka J
R v La, 1997 CanLII 309 (SCC),  2 SCR 680, per Sopinka J
R v Taillefer; R v Duguay, 2003 SCC 70 (CanLII),  3 SCR 307, per LeBel J
- Canada (Minister of Citizenship & Immigration) v Tobiass, 1997 CanLII 322 (SCC),  3 SCR 391, 118 CCC (3d) 443, per curiam, at para 86
Regan, supra, at para 53
R v Antinello, 1995 ABCA 117 (CanLII), (1995), 165 AR 122, 97 CCC (3d) 126 (CA), per Kerans JA (3:0)
R v Curragh, 1997 CanLII 381 (SCC),  1 SCR 537, 113 CCC (3d) 481, per La Forest and Cory J (7:2)
R v Spence, 2011 ONSC 2406 (CanLII), 85 CR (6th) 72, per Howden J
R v Bjelland, 2009 SCC 38 (CanLII),  2 SCR 651, per Rothstein J (4:3)
R v RPS, 2010 ABQB 418 (CanLII), 503 AR 233, per Thomas J
R v Robinson, 1999 ABCA 367 (CanLII), 250 AR 201, per McFadyen JA
R v Latimer, 1997 CanLII 405 (SCC),  1 SCR 217, 112 CCC (3d) 193, per Lamer CJ
R v Gangl, 2011 ABCA 357 (CanLII), per curiam
R v Samuels, 2008 ONCJ 85 (CanLII), per Nakatsuru J, at paras 62, 83
- R v Waugh, 2009 NBCA 23 (CanLII), per Drapeau CJ
- R v Thomson, 2009 ONCA 771 (CanLII), per curiam (3:0)
- Canada (Minister of Citizenship and Immigration) v Tobiass,  3 SCR 391, 1997 CanLII 322 (SCC), per curiam
R v Bellusci, 2012 SCC 44 (CanLII), per Fish J (7:0), at para 17
Grounds for Stays of Proceeding
- Abuse of Process (s. 7 of Charter)
- Cruel and Unusual Punishment (s. 12 of Charter)
- Right to a Trial Within a Reasonable Time (s. 11(b) of the Charter)
- Representation at Trial#State-funded Counsel ("Rowbotham" applications) - Stays for Lack of Counsel