Criminal Law Notebook

Stay of Proceedings

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General Principles

There are two different types of stays. A stay can be entered by the Crown under s. 579. This type of stay is discretionary and can be reversed at the discretion of the Crown. The second type of stay is one that is ordered by the judge either on application of the accused or in limited circumstances at the judge's own initiative.

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:

Attorney General may direct stay

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.
(2)...
R.S., 1985, c. C-46, s. 579; R.S., 1985, c. 27 (1st Supp.), s. 117.


– CCC

This section is a codification of the old common law power of the Crown, nolle prosequi that permits a stay proceedings.[1]

Discretion of Stay

This is a right of the crown on the basis that all criminal proceedings are on behalf of the Queen.[2]

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.[3] The entering of a stay is to be directed to the clerk of the court and not the judge him or herself.[4]

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.[5] The onus is upon the applicant to show that there was an abuse of process in staying the proceedings.[6]

Effects of a Stay

Once a Crown stay has been entered, all custody or bail orders are released.[7]

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.[8]

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.[9]

Constitutionality

The power of the Crown to stay a proceeding is not unconstitutional.[10]

  1. ↑ Whitehead v Ferris, P.C.J., and Saskatchewan (Attorney General), 1989 CanLII 4656 (SK QB), per Wimmer J, at para 4
  2. ↑ 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), [1979] 4 W.W.R. 90, 9 C.R. (3d) 378, per Culliton CJ
  3. ↑ R v Cunsolo, 2008 CanLII 48640 (ON SC), [2008] 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
  4. ↑ McKay, supra at para 12
  5. ↑ R v Scott, [1990] 3 SCR 979, 1990 CanLII 27 (SCC), per Cory J (5:4)
  6. ↑ R v N(D), 2004 NLCA 44 (CanLII), per Wells CJ
  7. ↑ Cunsolo, supra at para 27
  8. ↑ R v CW, 2011 ABPC 205 (CanLII), per Lefever DCJ, at paras 36 to 37
  9. ↑ R v Mann, 2012 BCSC 1248 (CanLII), per Bernard J
  10. ↑ Cunsolo, supra at para 27
    R v Fortin, [1989] OJ No 123 (C.A.)(*no CanLII links) , at para 1

Re-Initiating a Stayed Proceeding

See also: Plea of Not Guilty and Other Pleas

To recommence the proceedings the Crown must give notice to the clerk of the court. A new information is not required.[1]

The Crown must provide personal service to the accused and may use a summons to compel the accused to return to court.[2]

The decision to stay a proceeding under s. 579 is part of the core prosecutorial function and attracts a high degree of deference.[3]

579 (1) ...

Recommencement of proceedings

(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.
R.S., 1985, c. C-46, s. 579; R.S., 1985, c. 27 (1st Supp.), s. 117.


– CCC

  1. ↑ R v Velvick (1977), 33 CCC (2d) 447, 1976 CanLII 1300 (AB QB), per McFadyen J
  2. ↑ R v Dube (1986), 17 W.C.B. 213 (Ont. Dist. Ct.)(*no CanLII links)
  3. ↑ R v Cunsolo [2008] OJ No 3754; 2008 CanLII 48640 (ON SC), per Hill J at para 27

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.[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 para 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

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