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

Stay of Proceedings by Crown
Under s. 579 the Crown may direct that a proceedings be stayed.

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

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

Judicial Stay of Proceedings
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. The principle of abuse of process arises from the common law. It is now superseded by the Charter.

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'

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

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

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

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.

Abuse of Process
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.

Police Misconduct
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.

It has applied where police have given false evidence

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

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.

Prosecutorial Misconduct
See: Nixon, 2011 SCC 34

Lost evidence
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”. 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”. 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”

Delay

 * Canadian Criminal Procedure and Practice/Delay of Proceedings

Arbitrary Detention
See Canadian Criminal Procedure and Practice/Arrest_and_Detention/Arrest_Procedure 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.