Stay of Proceedings by Crown
A stay of proceedings initiated by the Crown is separate and apart from a judicial stay of proceedings.
The Crown may direct that a proceedings be stayed under s. 579:
This provision came into force on December 18, 2019.
This section is a codification of the old common law power of the Crown, nolle prosequi that permits a stay proceedings.
- Discretion of Stay
This is a right of the crown on the basis that all criminal proceedings are on behalf of the Queen.
The decision to enter a stay is unilateral. The judge has no ability to control or direct the actions of the Crown in staying a proceeding. The entering of a stay is to be directed to the clerk of the court and not the judge him or herself.
- Reason for Stay
It is not necessarily an abuse of process to stay a proceedings to protect informer identity and then recommence the proceedings at a later time. The onus is upon the applicant to show that there was an abuse of process in staying the proceedings.
- Effects of a Stay
Once a Crown stay has been entered, all custody or bail orders are released.
However, not all matters relating to the prosecution die upon entering a stay. Breaches of conditions and failures to attend court while the charges were in force will continue.
The accused's election of mode of trial remains in place for the duration of the stay up until the point that the stay becomes permanent.
The power of the Crown to stay a proceeding is not unconstitutional.
Whitehead v Ferris, P.C.J., and Saskatchewan (Attorney General), 1989 CanLII 4656 (SK QB), per Wimmer J, at para 4
R v Cooke, Dingman and Whitton (1948), 91 CCC 310, 1948 CanLII 357 (AB QB), per McBride J
R v McKay, 1979 CanLII 2185 (SK CA), (1979),  4 W.W.R. 90, 9 C.R. (3d) 378, per Culliton CJ
R v Cunsolo, 2008 CanLII 48640 (ON SC),  OJ No 3754; 180 C.R.R. (2d) 174 (Ont. Sup. Ct.), per Hill J, at para 27
R v Larosa, 2002 CanLII 45027 (ON CA), (2002), 166 CCC (3d) 449 (Ont. C.A.), per Doherty JA (3:0), at para 41
R v Smith, 1992 CanLII 325 (BC CA), per Hollinrake JA (3:0), at para 25
McKay, supra, at para 12
- R v Scott,  3 SCR 979, 1990 CanLII 27 (SCC), per Cory J (5:4)
- R v N(D), 2004 NLCA 44 (CanLII), per Wells CJ
Cunsolo, supra, at para 27
R v CW, 2011 ABPC 205 (CanLII), per Lefever DCJ, at paras 36 to 37
- R v Mann, 2012 BCSC 1248 (CanLII), per Bernard J
Cunsolo, supra, at para 27
R v Fortin,  OJ No 123 (C.A.)(*no CanLII links) , at para 1
Re-Initiating a Stayed Proceeding
To recommence the proceedings the Crown must give notice to the clerk of the court. A new information is not required.
The Crown must provide personal service to the accused and may use a summons to compel the accused to return to court.
The decision to stay a proceeding under s. 579 is part of the core prosecutorial function and attracts a high degree of deference.
- Abusive Reinstatement
There is some suggestion that the use of a Crown stay of proceedings for the purpose of avoiding an adjournment request is abusive.
- R v Velvick (1977), 33 CCC (2d) 447, 1976 CanLII 1300 (AB QB), per McFadyen J
R v Dube (1986), 17 W.C.B. 213 (Ont. Dist. Ct.)(*no CanLII links)
R v Cunsolo  OJ No 3754; 2008 CanLII 48640 (ON SC), per Hill J, at para 27
R v Cole, 1998 CanLII 2425 (NS SC), per Hood J
Cf. R v Cole, 2000 NSCA 42 (CanLII), per Bateman JA, at para 49 (The Court had “grave doubts as to the propriety of the [application judge’s] ruling” and considered the decision a "novel" interpretation of of Crown discretion)
see also R v Parkin (1986), 1986 CanLII 4640 (ON CA), 28 CCC (3d) 252, 16 W.C.B. 167 (Ont. C.A.), per Thorson J - re-lay to avoid limitation period
see also R v Quinn (1989), 1989 CanLII 959 (QC CA), 48 C.R.R. 314, 54 C.C.C. (3d) 157 (Que. C.A.), per curiam - re-lay to avoid limitation period