Stay of Proceedings

This is when the court proceedings are halted at the direction of the Crown or a judge. When the Crown enters a stay of proceedings that is known as a prosecutorial stay. The Crown then has up to a year to restart the proceedings under s.579(2) of the Criminal Code. When judges stay proceedings that is a judicial stay and it is permanent. The type of stay is usually a remedy for a serious breach of the Canadian Charter of Rights and Freedoms.

• These stays are directed by the Crown attorney as granted by s.579(1) of the Criminal Code. That section empowers the Crown to direct that a stay of proceedings be entered on the court record. Under s.579(2), the Crown then has up to a year to restart those proceedings. If the proceedings are not restarted within that window, the "proceedings shall be deemed never to have been commenced."
• There are varied reasons why the Crown may choose to stay proceedings. These include if there is no reasonable prospect of conviction based on the evidence, the prosecution does not serve the public interest or if a youth is referred to extrajudicial sanctions.

A judicial stay of proceedings is considered the “ultimate remedy” in our legal system as the charges against the person cannot be revisited. This type of stay is only given in rare circumstances, such as when the integrity of the justice system is implicated.

A 1995 Supreme Court judgment [R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411] discussed when these stays are given, noting: “The discretion to order a stay may be exercised only in the ‘clearest of cases,’ meaning that the trial judge must be convinced that, if allowed to continue, the proceedings would tarnish the integrity of the judicial process.”

This is a very exceptional remedy for a court to give, and will only be handed down if someone’s Charter rights have been breached so badly that the only remedy is to stay the proceedings. Trial judges have the power to stay proceedings, thanks to s.24(1) of the Canadian Charter of Rights and Freedoms. It notes that if rights or freedoms, as guaranteed by the Charter, have been infringed or denied a person may apply to a court “to obtain such remedy as the court considers appropriate and just in the circumstances.”