What is a Stay of Proceedings?

When proceedings are stayed by the Crown, the prosecution has ended and the accused is no longer in jeopardy – legally, it is as if the accused has never been charged. Any orders related to pre-trial detention or release are vacated.

There are two types of stays of proceedings; stays directed by the Attorney General, known as Prosecutorial Stays, and stays directed by a Judge, known as Judicial Stays.

Prosecutorial Stays

Under section 579 of the Criminal Code, the Attorney General or any counsel instructed by the Attorney General may, at any time after the proceedings have started, and before judgement, direct the court to make an entry on the record that the proceedings are stayed.

This decision made by the Crown is part of their administrative prosecutorial discretion and is unilateral – a judge has no ability to control or direct the Crown’s decision and can only interfere with this decision in the very limited circumstances of an abuse of process. The Crown may objectively choose to stay the proceedings, for example, if there is no reasonable prospect of conviction based on the evidence, or if the prosecution does not serve the public interest.

Re-commencing Stayed Proceedings

However, unlike a withdrawal of charges, proceedings stayed by the Crown may be re-commenced under section 579(2) of the Criminal Code without laying a new information and rather by giving notice to the court where the stay of proceedings was entered. To be able to do this, notice must be given within one year of which the stay of proceedings was ordered, or before the expiration of the time within which the proceedings could have been commenced, whichever is earlier. If this notice is not given, the proceedings will be deemed to never have been commenced.

After a prosecutorial stay of proceedings, and after the one-year limitation period has expired, the Crown can only pursue similar charges if they re-lay a new information based on new evidence and start the process entirely over again.

Judicial Stays

A stay of proceedings can also be granted by a trial Judge under section 24(1) of the Canadian Charter of Rights and Freedoms. This is a very drastic remedy and will only occur in the clearest of cases upon a finding that an accused’s Charter rights have been breached in such a way that the only remedy is to stay the proceedings. A Judicial stay of proceedings only occurs in exceptional circumstances, where some egregious misconduct has occurred, and no alternative remedy would appropriately cure the prejudice to the accused. This determination is final and prevents a Court from ever adjudicating the matter – there is no determining guilt or innocence beyond this stay.