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Canadian Criminal Procedure and Practice/Pre-Trial Matters/Stay of Proceedings

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Stay of Proceedings by Crown

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Under s. 579 the Crown may direct that a proceedings be stayed.

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.


– CCC

This is a right of the crown on the basis that all criminal proceedings are on behalf of the queen.[1]

This form of stay is separate and apart from a judicial stay of proceedings.

  1. ↑ R v Cooke, Dingman and Whitton (1948), 91 C.C.C. 310

Judicial Stay of Proceedings

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of fundamental justice" under s. 7.[1] The principle of abuse of process arises from the common law.[2] It is now superseded by the Charter.[3]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

  1. ↑ R v Jewitt [1985] 2 SCR 128
    R v Kalanj [1989] 1 SCR 1594
    R v Power [1994] 1 SCR 601
  2. ↑ R v O'Connor [1995] 4 SCR 411
  3. ↑ e.g. R v Regan [2002] 1 SCR 297
  4. ↑ R. v. O'Connor, [1995] 4 S.C.R. 411 [1]
    see Carosella, 1997 CanLII 402 (SCC), [1997] 1 S.C.R. 80
    R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680
    R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297; and R. v. Taillefer
    R. v. Duguay, 2003 SCC 70, [2003] 3 S.C.R. 307
  5. ↑ Canada (Minister of Citizenship & Immigration) v. Tobiass,1997 CanLII 322 (SCC), [1997] 3 SCR 391, 118 CCC (3d) 443 at para 86.
  6. ↑ R. v. Regan, 2002 SCC 12 (CanLII), 2002 SCC 12, [2002] 1 SCR 297 at para 53
  7. ↑ R. v. Antinello, (1995), 165 AR 122, 97 CCC (3d) 126 (CA)
    R. v. Curragh, 1997 CanLII 381 (SCC), [1997] 1 SCR 537, 113 CCC (3d) 481
    R. v. Spence, 2011 ONSC 2406, 85 CR (6th) 72
    R. v. Bjelland, 2009 SCC 38, [2009] 2 SCR 651
    R. v. R.P.S, 2010 ABQB 418, 503 AR 233
    R. v. Robinson, 1999 ABCA 367, 250 AR 201
    R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 SCR 217, 112 CCC (3d) 193
    R. v. Gangl, 2011 ABCA 357

Abuse of Process

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The test was set out as follows:

"Regardless of whether the abuse causes prejudice to the accused, because of an unfair trial, or to the integrity of the justice system, a stay of proceedings will only be appropriate when two criteria are met:
(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and
(2) no other remedy is reasonably capable of removing that prejudice.[1]
  1. ↑ RR. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297 [2]

Police Misconduct

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Police misconduct towards an accused in certain cases can lead to a stay of proceedings on the basis of abuse of process under the residual category.[1]

It has applied where police have given false evidence[2]

The police are entitled to use "lawful stratagems, even amounting to reasonable trickery, to gather evidence".[3]

It has been successfully argued that a video camera filming an accused in lockup using the toilet is a violation of s. 8 resulting in a stay of proceedings.[4]

  1. ↑ R. v. Ahmed, 2011 ONSC 2551: obstruction charge stayed
    R. v. Maskell, 2011 ABPC 176: impaired charges stayed
  2. ↑ R. v. Spagnoli and Shore, 2011 ONSC 4843 -- falsified anonymous source information
  3. ↑ R. v Grandinetti, 2003 ABCA 307 at paras. 36-42
  4. ↑ R. v. Mok, 2012 ONCJ 291

Prosecutorial Misconduct

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See: Nixon, 2011 SCC 34

Lost evidence

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Not every case loss of evidence will infringe the accused’s right to make full answer and defence. “Owing to the frailties of human nature, evidence will occasionally be lost” [1]. The Crown must explain the loss and satisfy the trial judge that it was not due to unacceptable negligence or an abuse of process. If satisfactorily explained, the onus is on the accused to “establish actual prejudice to his or her right to make full answer and defence” [2]. The principal consideration, in the explanation, “is whether the Crown or the police (as the case may be) took reasonable steps in the circumstances to preserve the evidence” [3]


  1. ↑ R. v. La, 1997 CanLII 309 (SCC), [1997] 2 SCR 680, at para. 20
  2. ↑ La at para. 25
  3. ↑ La at para. 21
    and see R. v. Kociuk (R.J.), 2011 MBCA 85

Delay

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Arbitrary Detention

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See Canadian Criminal Procedure and Practice/Arrest_and_Detention/Arrest_Procedure#Terms of Custody for details on detention procedure.

For a stay of proceedings to be made due to a breach of s.9 during detention post-arrest, there must be some connection between the charges and the breach. [1]

  1. ↑ R. v. Salisbury, 2011 SKQB 153 at 11 (" It is accepted that there was a breach of s. 9 of the Charter. However, it occurred after the commission of the offences and after the investigation had been completed. There was no connection between the breach and the charges. ")
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