Judicial Stay of Proceedings

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General Principles

See also: Stay of Proceedings and Stay of Proceedings by Crown

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of fundamental justice" under s. 7.[1] The principle of abuse of process arises from the common law.[2] It is now superseded by the Charter.[3]

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'[4]

A stay of proceedings is considered the “ultimate remedy” that is absolutely final, preventing the court from ever adjudicating the matter.[5]

Consequently, there is a high threshold on a stay of proceedings. It is only permissible in the “clearest of cases”.[6]

A clearest of case is one in which the integrity of the justice system is implicated.[7]

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".[8]

A judge does not have the power to stay proceedings on an electable charge where the defence has yet to enter his election.[9]

Breaches of s. 11(b) are treated differently from other Charter breaches.[10]

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.[11]

Standard of Appellate Review

A decision to stay a proceeding under s. 24(1) of the Charter is accorded deference on review.[12]

  1. R v Jewitt, 1985 CanLII 47 (SCC), [1985] 2 SCR 128, per Dickson CJ (7:0)
    R v Kalanj, 1989 CanLII 63 (SCC), [1989] 1 SCR 1594, per McIntyre J (3:2)
    R v Power, 1994 CanLII 126 (SCC), [1994] 1 SCR 601, per L'Heureux‑Dubé J (4:3)
  2. R v O'Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411, per L'Heureux‑Dubé J
  3. e.g. R v Regan, 2002 SCC 12 (CanLII), [2002] 1 SCR 297, per LeBel J (5:4)
  4. O'Connor, supra
    see R v Carosella, 1997 CanLII 402 (SCC), [1997] 1 SCR 80, per Sopinka J
    R v La, 1997 CanLII 309 (SCC), [1997] 2 SCR 680, per Sopinka J
    Regan, supra
    R v Taillefer; R v Duguay, 2003 SCC 70 (CanLII), [2003] 3 SCR 307, per LeBel J
  5. Canada (Minister of Citizenship & Immigration) v Tobiass, 1997 CanLII 322 (SCC), [1997] 3 SCR 391, 118 CCC (3d) 443, per curiam, at para 86
  6. Regan, supra, at para 53
  7. 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), [1997] 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), [2009] 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), [1997] 1 SCR 217, 112 CCC (3d) 193, per Lamer CJ
    R v Gangl, 2011 ABCA 357 (CanLII), per curiam
  8. R v Samuels, 2008 ONCJ 85 (CanLII), per Nakatsuru J, at paras 62, 83
  9. R v Waugh, 2009 NBCA 23 (CanLII), per Drapeau CJ
  10. R v Thomson, 2009 ONCA 771 (CanLII), per curiam (3:0)
  11. Canada (Minister of Citizenship and Immigration) v Tobiass, [1997] 3 SCR 391, 1997 CanLII 322 (SCC), per curiam
  12. R v Bellusci, 2012 SCC 44 (CanLII), per Fish J (7:0), at para 17

Grounds for Stays of Proceeding

Case Digests