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| | [[fr:Suspension_des_procédures]] |
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| ==Stay of Proceedings by Crown== | | ==Stay of Proceedings by Crown== |
| A stay of proceedings initiated by the Crown is separate and apart from a judicial stay of proceedings.
| | * [[Stay of Proceedings by Crown]] |
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| The Crown may direct that a proceedings be stayed under s. 579:
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| {{quotation|
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| '''Attorney General may direct stay'''<br>
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| 579. (1) The Attorney General or counsel instructed by him for that purpose may, at any time after any proceedings in relation to an accused or a defendant are commenced and before judgment, direct the clerk or other proper officer of the court to make an entry on the record that the proceedings are stayed by his direction, and such entry shall be made forthwith thereafter, whereupon the proceedings shall be stayed accordingly and any recognizance relating to the proceedings is vacated.
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| <!--NB: add citation at bottom--><Br>
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| (2)...<br>
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| R.S., 1985, c. C-46, s. 579;
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| R.S., 1985, c. 27 (1st Supp.), s. 117.
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| |[http://canlii.ca/t/7vf2#sec579 CCC]
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| }}
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| This section is a codification of the old common law power of the Crown, ''nolle prosequi'' that permits a stay proceedings.<ref>
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| Whitehead v Ferris, P.C.J., and Saskatchewan (Attorney General), [http://canlii.ca/t/g8f2h 1989 CanLII 4656] (SK QB){{perSKQB|Wimmer J}}{{at|4}}<Br>
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| </ref>
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| '''Discretion of Stay'''<br>
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| This is a right of the crown on the basis that all criminal proceedings are on behalf of the Queen.<ref>
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| ''R v Cooke'', Dingman and Whitton (1948), 91 CCC 310, [http://canlii.ca/t/g9gxh 1948 CanLII 357] (AB QB){{perABQB|McBride J}}<br>
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| ''R v McKay'', [http://canlii.ca/t/g7ht2 1979 CanLII 2185] (SK CA), (1979), [1979] 4 W.W.R. 90, 9 C.R. (3d) 378{{perSKCA|Culliton CJ}}</ref>
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| 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.<ref>
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| ''R v Cunsolo'', [http://canlii.ca/t/20wwp 2008 CanLII 48640] (ON SC), [2008] OJ No 3754; 180 C.R.R. (2d) 174 (Ont. Sup. Ct.){{perONSC|Hill J}} at para 27<br>
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| ''R v Larosa'', [http://canlii.ca/t/1ct1t 2002 CanLII 45027] (ON CA), (2002), 166 CCC (3d) 449 (Ont. C.A.){{perONCA|Doherty JA}} (3:0) at para 41<br>
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| ''R v Smith'', [http://canlii.ca/t/1d9sp 1992 CanLII 325] (BC CA){{perBCCA|Hollinrake JA}} (3:0) at para 25<br>
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| </ref>
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| The entering of a stay is to be directed to the clerk of the court and not the judge him or herself.<ref>
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| McKay{{supra}} at para 12<br>
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| </ref>
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| '''Reason for Stay'''<br>
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| 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.<ref>
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| ''R v Scott'', [1990] 3 SCR 979, [http://canlii.ca/t/1fsp3 1990 CanLII 27] (SCC){{perSCC|Cory J}} (5:4)
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| </ref>
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| The onus is upon the applicant to show that there was an abuse of process in staying the proceedings.<ref>
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| R v N(D), [http://canlii.ca/t/1hkj0 2004 NLCA 44] (CanLII){{perNLCA|Wells CJ}}
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| </ref>
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| '''Effects of a Stay'''<br>
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| Once a Crown stay has been entered, all custody or bail orders are released.<ref>
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| Cunsolo{{supra}} at para 27<br>
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| </ref>
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| 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.<ref>
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| ''R v CW'', [http://canlii.ca/t/fm6dw 2011 ABPC 205] (CanLII){{perABPC|Lefever DCJ}}, at paras 36 to 37<br>
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| </ref>
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| 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.<ref>
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| ''R v Mann'', [http://canlii.ca/t/fsdzd 2012 BCSC 1248] (CanLII){{perBCSC|Bernard J}}
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| </ref>
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| '''Constitutionality'''<br>
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| The power of the Crown to stay a proceeding is not unconstitutional.<ref>
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| Cunsolo{{supra}} at para 27<br>
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| ''R v Fortin'', [1989] OJ No 123 (C.A.){{NOCANLII}}{{at|1}}<br>
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| </ref>
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| {{Reflist|2}}
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| ===Re-Initiating a Stayed Proceeding===
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| {{seealso|Plea of Not Guilty and Other Pleas}}
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| To recommence the proceedings the Crown must give notice to the clerk of the court. A new information is not required.<ref>
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| ''R v Velvick'' (1977), 33 CCC (2d) 447, [http://canlii.ca/t/gd8qm 1976 CanLII 1300] (AB QB){{perABQB|McFadyen J}}
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| </ref>
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| The Crown must provide personal service to the accused and may use a summons to compel the accused to return to court.<ref>
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| ''R v Dube'' (1986), 17 W.C.B. 213 (Ont. Dist. Ct.){{NOCANLII}}<br>
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| </ref>
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| The decision to stay a proceeding under s. 579 is part of the core prosecutorial function and attracts a high degree of deference.<ref>
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| R v Cunsolo [2008] OJ No 3754; [http://canlii.ca/t/20wwp 2008 CanLII 48640] (ON SC){{perONSC|Hill J}} at para 27<br>
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| </ref>
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| {{quotation|
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| 579 (1) ...
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| <br>
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| '''Recommencement of proceedings'''<br>
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| (2) Proceedings stayed in accordance with subsection (1) may be recommenced, without laying a new information or preferring a new indictment, as the case may be, by the Attorney General or counsel instructed by him for that purpose giving notice of the recommencement to the clerk of the court in which the stay of the proceedings was entered, but where no such notice is given within one year after the entry of the stay of proceedings, or before the expiration of the time within which the proceedings could have been commenced, whichever is the earlier, the proceedings shall be deemed never to have been commenced.
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| <br>
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| R.S., 1985, c. C-46, s. 579; R.S., 1985, c. 27 (1st Supp.), s. 117.
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| |[http://canlii.ca/t/7vf2#sec579 CCC]
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| }}
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| {{reflist|2}}
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| ==Judicial Stay of Proceedings== | | ==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.<ref>
| | * [[Judicial Stay of Proceedings]] |
| ''R v Jewitt'', [http://canlii.ca/t/1ftxr 1985 CanLII 47] (SCC), [1985] 2 SCR 128{{perSCC|Dickson CJ}} (7:0)<br>
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| ''R v Kalanj'', [http://canlii.ca/t/1ft46 1989 CanLII 63] (SCC), [1989] 1 SCR 1594{{perSCC|McIntyre J}} (3:2)<br>
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| ''R v Power'', [http://canlii.ca/t/1frvh 1994 CanLII 126] (SCC), [1994] 1 SCR 601{{perSCC|L'Heureux‑Dubé J}} (4:3)<br>
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| </ref> The principle of abuse of process arises from the common law.<ref>
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| ''R v O'Connor'', [http://canlii.ca/t/1frdh 1995 CanLII 51] (SCC), [1995] 4 SCR 411{{perSCC|L'Heureux‑Dubé J}}</ref> It is now superseded by the Charter.<ref>
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| e.g. ''R v Regan'', [http://canlii.ca/t/51v8 2002 SCC 12] (CanLII), [2002] 1 SCR 297{{perSCC|LeBel J}} (5:4)</ref>
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| A Stay of Proceedings is the most drastic of remedies available to a court. As the Supreme Court of Canada stated:
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| :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'<ref>
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| O'Connor{{supra}}<br>
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| see ''R v Carosella'', [http://canlii.ca/t/1fr3p 1997 CanLII 402] (SCC), [1997] 1 SCR 80{{perSCC|Sopinka J}} <br>
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| ''R v La'', [http://canlii.ca/t/1fr18 1997 CanLII 309] (SCC), [1997] 2 SCR 680{{perSCC|Sopinka J}}<br>
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| Regan{{supra}}<br>
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| R v Taillefer; ''R v Duguay'', [http://canlii.ca/t/1g992 2003 SCC 70] (CanLII), [2003] 3 SCR 307{{perSCC|LeBel J}}<br>
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| </ref>
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| A stay of proceedings is considered the “ultimate remedy” that is absolutely final, preventing the court from ever adjudicating the matter.<ref>
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| Canada (Minister of Citizenship & Immigration) v Tobiass, [http://canlii.ca/t/1fr01 1997 CanLII 322] (SCC), [1997] 3 SCR 391, 118 CCC (3d) 443{{TheCourtSCC}} at para 86</ref>
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| Consequently, there is a high threshold on a stay of proceedings. It is only permissible in the “clearest of cases”.<ref>
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| ''R v Regan'', at para 53<br>
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| </ref>
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| A clearest of case is one in which the integrity of the justice system is implicated.<ref>
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| ''R v Antinello'', [http://canlii.ca/t/2dc13 1995 ABCA 117] (CanLII), (1995), 165 AR 122, 97 CCC (3d) 126 (CA){{perABCA|Kerans JA}} (3:0)<br>
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| ''R v Curragh'', [http://canlii.ca/t/1fr2v 1997 CanLII 381] (SCC), [1997] 1 SCR 537, 113 CCC (3d) 481{{perSCC|La Forest and Cory J}} (7:2)<br>
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| ''R v Spence'', [http://canlii.ca/t/fl8t9 2011 ONSC 2406] (CanLII), 85 CR (6th) 72{{perONSC|Howden J}}<br>
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| ''R v Bjelland'', [http://canlii.ca/t/24wcw 2009 SCC 38] (CanLII), [2009] 2 SCR 651{{perSCC|Rothstein J}} (4:3)<br>
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| R v R.P.S, [http://canlii.ca/t/2f5tn 2010 ABQB 418] (CanLII), 503 AR 233{{perABQB|Thomas J}}<br>
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| ''R v Robinson'', [http://canlii.ca/t/5s1f 1999 ABCA 367] (CanLII), 250 AR 201{{perABCA|McFadyen JA}}<br>
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| ''R v Latimer'', [http://canlii.ca/t/1fr3w 1997 CanLII 405] (SCC), [1997] 1 SCR 217, 112 CCC (3d) 193{{perSCC|Lamer CJ}}<br>
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| ''R v Gangl'', [http://canlii.ca/t/fp6bp 2011 ABCA 357] (CanLII){{TheCourtABCA}}<br>
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| </ref>
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| 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.
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| A stay should not be used "to discipline the police or to attempt to redress a past wrong".<ref>
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| ''R v Samuels'', [http://canlii.ca/t/1vx48 2008 ONCJ 85] (CanLII){{perONCJ|Nakatsuru J}} at para 62, 83<br>
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| </ref>
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| A judge does not have the power to stay proceedings on an electable charge where the defence has yet to enter his election.<ref>
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| ''R v Waugh'', [http://canlii.ca/t/23jxr 2009 NBCA 23] (CanLII){{perNBCA|Drapeau CJ}}
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| </ref>
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| Breaches of s. 11(b) are treated differently from other Charter breaches.<ref>
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| ''R v Thomson'', [http://canlii.ca/t/26g5w 2009 ONCA 771] (CanLII){{TheCourtONCA}} (3:0)
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| </ref>
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| '''Stay is Mostly a Prospective Remedy'''<br>
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| 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.<ref>
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| Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 SCR 391, [http://canlii.ca/t/1fr01 1997 CanLII 322] (SCC){{TheCourtSCC}}
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| </ref>
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| '''Standard of Appellate Review'''<br>
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| A decision to stay a proceeding under s. 24(1) of the Charter is accorded deference on review.<ref>
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| ''R v Bellusci'', [http://canlii.ca/t/fs7kv 2012 SCC 44] (CanLII){{perSCC|Fish J}} (7:0) at para 17<br>
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| </ref>
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| {{reflist|2}}
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| ===Grounds for Stays of Proceeding===
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| * [[Abuse of Process]] (s. 7 of Charter)
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| ** [[Abuse of Process by Law Enforcement|Police Misconduct]] (violence, trickery, etc)
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| ** [[Abuse of Process by Crown Counsel|Crown misconduct]]
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| ** [[Lost or Destroyed Evidence|Lost evidence]]
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| * [[Cruel and Unusual Punishment]] (s. 12 of Charter)
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| * [[Right to a Trial Within a Reasonable Time]] (s. 11(b) of the Charter)
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| * [[Representation at Trial#State-funded Counsel]] ("Rowbotham" applications) - Stays for Lack of Counsel
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| ==Case Digests==
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| * [[Stay of Proceedings (Cases)]] | |
