Stay of Proceedings by Crown

From Criminal Law Notebook
This page was last substantively updated or reviewed July 2021. (Rev. # 92897)

General Principles

See also: Stay of Proceedings and Judicial Stay of Proceedings

A stay of proceedings initiated by the Crown is separate and apart from a judicial stay of proceedings.

The power to stay prosecutions applies equally to Crown prosecutions and private prosecutions.[1] Pre-enquete, where the interests of the party advancing a private prosecution conflict with that of the Crown, the role of the Crown is paramount.[2]

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 the Attorney General 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 the Attorney General’s or counsel’s direction, as the case may be, and the entry shall then be made, at which time the proceedings shall be stayed accordingly and any undertaking or release order relating to the proceedings is vacated.
[omitted (2)]
R.S., 1985, c. C-46, s. 579; R.S., 1985, c. 27 (1st Supp.), s. 117; 2019, c. 25, s. 264.

– CCC (CanLII), (DOJ)

Note up: 579(1)

This provision came into force on December 18, 2019.

This section is a codification of the old common law power of the Crown, nolle prosequi that permits a stay proceedings.[3]

Discretion of Stay

This is a right of the crown on the basis that all criminal proceedings are on behalf of the Queen.[4]

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.[5] The entering of a stay is to be directed to the clerk of the court and not the judge him or herself.[6]

A Crown stay of proceedings is part of the "core" of prosecutorial discretion.[7]

Timing of Stay

The language of s. 579(1) has been interpreted as permitting application anytime after an information has been laid.[8] It is not necessary that the Crown await for determination by the judge or justice to issue process.[9]

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.[10] The onus is upon the applicant to show that there was an abuse of process in staying the proceedings.[11]

Effects of a Stay

Once a Crown stay has been entered, all custody or bail orders are released.[12]

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.[13]

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.[14]

Constitutionality

The power of the Crown to stay a proceeding is not unconstitutional.[15]

Private Prosecution

The Crown may stay a private prosecution under s. 579. That stay is reviewable as an extraordinary remedy under the Code.

A person declared an vexatious litigant for the purposes of civil litigations is not prohibited from challenging such a stay.[16]

Judicial Review
See also: Abuse of Process by Crown Counsel

While there is "considerable deference" to the Crown exercising the power to stay a proceeding, the decision is reviewable only for abuse of process.[17]

The burden of proof is on the claimant to prove the elements of abuse on a balance of probabilities.[18]

  1. ↑ Glegg, infra, at para 39
  2. ↑ Glegg, infra, at para 39
    Re Bradley et al and The Queen, 1975 CanLII 766 (ON CA), 24 CCC (2d) 482, per Arnup JA, at p. 490
  3. ↑ Whitehead v Ferris, P.C.J., and Saskatchewan (Attorney General), 1989 CanLII 4656 (SK QB), 76 Sask R 78, per Wimmer J, at para 4
  4. ↑ R v Cooke, Dingman and Whitton, 1948 CanLII 357 (AB QB), 91 CCC 310, per McBride J
    R v McKay, 1979 CanLII 2185 (SK CA), [1979] 4 WWR 90, 9 CR (3d) 378, per Culliton CJ
  5. ↑ R v Cunsolo, 2008 CanLII 48640 (ONSC), , [2008] OJ No 3754; 180 CRR (2d) 174 (Ont. Sup. Ct.), per Hill J, at para 27
    R v Larosa, 2002 CanLII 45027 (ON CA), 166 CCC (3d) 449, per Doherty JA (3:0), at para 41
    R v Smith, 1992 CanLII 325 (BC CA), 79 CCC (3d) 70, per Hollinrake JA (3:0), at para 25
  6. ↑ McKay, supra, at para 12
  7. ↑ R v Glegg, 2021 ONCA 100 (CanLII), per Watt JA, at para 39
  8. ↑ Glegg, supra, at para 45
    R v McHale, 2010 ONCA 361 (CanLII), 256 CCC (3d) 26, per Watt JA, at paras 85 to 87, 89
    R v Vasarhelyi, 2011 ONCA 397 (CanLII), 272 CCC (3d) 193, per Watt JA, at para 49
    R v Pardo, 1990 CanLII 10957 (QC CA), 62 CCC (3d) 371, per Gendreau JA, at pp. 373-74
    R v Klippenstein, 2019 MBCA 13 (CanLII), 152 WCB (2d) 551, at para 7
    R v Linamar Holdings Inc, 2007 ONCA 873 (CanLII), 76 WCB (2d) 120, at paras 9 to 10
  9. ↑ Glegg, supra, at para 45
  10. ↑ R v Scott, 1990 CanLII 27 (SCC), [1990] 3 SCR 979, per Cory J (5:4)
  11. ↑ R v N(D), 2004 NLCA 44 (CanLII), 188 CCC (3d) 89, per Wells CJ
  12. ↑ Cunsolo, supra, at para 27
  13. ↑ R v CW, 2011 ABPC 205 (CanLII), 512 AR 310, per Lefever DCJ, at paras 36 to 37
  14. ↑ R v Mann, 2012 BCSC 1248 (CanLII), per Bernard J
  15. ↑ Cunsolo, supra, at para 27
    R v Fortin, [1989] OJ No 123 (CA)(*no CanLII links) , at para 1
  16. ↑ Holland v British Columbia (Attorney General), 2020 BCCA 304 (CanLII), 394 CCC (3d) 552, per Harris JA, at para 31
  17. ↑ Glegg, supra, at para 40
    R v Anderson, 2014 SCC 41 (CanLII), [2014] 2 SCR 167, per Moldaver JA, at para 48
    Krieger v Law Society of Alberta, 2002 SCC 65 (CanLII), [2002] 3 SCR 372, per Iacobucci AND Major JJ, at para 32
    R v Nixon, 2011 SCC 34 (CanLII), [2011] 2 SCR 566, per Charron J, at para 31
  18. ↑ Glegg, supra, at para 41

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
[omitted (1)]

Recommencement of proceedings

(2) Proceedings stayed in accordance with subsection (1) [crown directed stay of proceedings] 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 (CanLII), (DOJ)

Note up: 579(2)

Abusive Reinstatement

There is some suggestion that the use of a Crown stay of proceedings for the purpose of avoiding an adjournment request is abusive.[4]

  1. ↑ R v Velvick, 1976 CanLII 1300 (AB QB), 33 CCC (2d) 447, per McFadyen J
  2. ↑ R v Dube (1986), 17 WCB 213 (Ont. Dist. Ct.)(*no CanLII links)
  3. ↑ R v Cunsolo, 2008 CanLII 48640 (ONSC), [2008] OJ No 3754, per Hill J, at para 27
  4. ↑ R v Cole, 1998 CanLII 2425 (NS SC), 126 CCC (3d) 159, per Hood J
    Cf. R v Cole, 2000 NSCA 42 (CanLII), 143 CCC (3d) 417, per Bateman JA, at para 49 (The Court had “grave doubts as to the propriety of the [application judge’s] ruling” and considered the decision a "novel" interpretation of of Crown discretion)
    see also R v Parkin, 1986 CanLII 4640 (ON CA), 28 CCC (3d) 252, 16 WCB 167, per Thorson J - re-lay to avoid limitation period
    see also R v Quinn, 1989 CanLII 959 (QC CA), 48 CRR 314, 54 CCC (3d) 157, per curiam - re-lay to avoid limitation period

Preclearance Act Proceedings

Instruction to stay

579.001 (1) The Attorney General or counsel instructed by him or her for that purpose shall, at any time after proceedings in relation to an act or omission of a preclearance officer, as defined in section 5 of the Preclearance Act, 2016, 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 direction of the Attorney General if the Government of the United States has provided notice of the exercise of primary criminal jurisdiction under paragraph 14 of Article X of the Agreement.

Stay

(2) The clerk or other officer of the court shall make the entry immediately after being so directed, and on the entry being made the proceedings are stayed and any recognizance relating to the proceedings is vacated.

Recommencement

(3) The proceedings may be recommenced without laying a new information or preferring a new indictment, if the Attorney General or counsel instructed by him or her gives notice to the clerk or other officer of the court that

(a) the Government of the United States has provided notice of waiver under paragraph 15 of Article X of the Agreement; or
(b) the Government of the United States has declined, or is unable, to prosecute the accused and the accused has returned to Canada.
Proceedings deemed never commenced

(4) However, if the Attorney General or counsel does not give notice under subsection (3) [re-commencing stayed charges against preclearance offier] on or before the first anniversary of the day on which the stay of proceedings was entered, the proceedings are deemed never to have been commenced.

Definition of Agreement

(5) In this section, Agreement means the Agreement on Land, Rail, Marine, and Air Transport Preclearance between the Government of Canada and the Government of the United States of America, done at Washington on March 16, 2015.

2017, c. 27, s. 62.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 579.001(1), (2), (3), (4), and (5)

See Also

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