Stays of Proceedings

• Author: Matthew Asma/Matthew Gourlay
• Pages: 75-122

75

Stays of

Proceedings

3

I. Introduction ............................................. 

II. Key Concepts in This Chapter ............................... 

III. Abuse of Process .......................................... 

A. At Common Law .................................... 

B. The Merged Doctrine ................................. 

C. The Two Categories .................................. 

D. Categories of Abuse Potentially Meriting a Stay ............ 

E. Procedure and Timing ................................ 

F. Issues of Proof ...................................... 

G. On Appeal ......................................... 

IV. Entrapment .............................................. 

A. Reasonable Suspicion ................................ 

B. Bona Fide Inquiry .................................... 

C. Inducing the Commission of an Oence ................. 

D. Drug-Dealing Investigations ........................... 

E. Child-Luring and Child Prostitution Investigations ......... 

V. Unreasonable Delay ....................................... 

© 2023 Emond Montgomery Publications. All Rights Reserved.

76 Charter Remedies in Criminal Cases

I. Introduction

A judicial stay of proceedings permanently halts the prosecution of an accused on an

information or indictment before a court. This exercise of common law or Charter

jurisdiction is distinct from a stay directed by the Crown pursuant to section 579

of the Criminal Code,1 which allows proceedings stayed under that authority to be

recommenced within 12 months without laying a new information or preferring a

new indictment.

A stay of proceedings is the “most drastic remedy” available under section 24(1).2

It is a judicial declaration that the prosecution must be abandoned without any

determination of the accused’s guilt or innocence. When that happens, the vaunted

“truth-seeking” function of the criminal trial is entirely subordinated to counter -

vailing interests: usually, the need to disassociate the court from ocial misconduct

that infringed the rights of the accused or compromised the integrity of the criminal

process.

The stay of proceedings is a prospective remedy, not a form of redress for past

wrongs.3 That is, it attempts to forestall a harm—to the accused’s rights or to the sys-

tem itself—that would be occasioned if the proceeding were allowed to move for ward.

In one sense, then, it is not really a “remedy” at all as that term is usually understood.

However, as will be seen, notwithstanding its prospective character, a court assessing

the appropriateness of a stay will in most cases need to focus its analysis on the grav-

ity and blameworthiness of the state misconduct said to require it. Defence counsel’s

challenge, in large part, is to demonstrate the exceptional character of the alleged

misconduct. Crown counsel’s, naturally, is to rebut that proposition.

A stay of proceedings is most often sought where the accused claims:

• that their section 11(b) Charter right to trial within a reasonable time has been

breached;

• the conduct of the police or prosecution has amounted to an abuse of process;4

or

1 RSC 1985, c C-46 [the Code].

2 R v Babos, 2014 SCC 16 at para 30.

3 Canada (Minister of Citizenship and Immigration) v Tobiass, [1997] 3 SCR 391, 1997 CanLII 322

at para91.

4 In R v Light, 1993 CanLII 1023 at para 75, 78 CCC (3d) 221 (BCCA), Wood JA explained that

“the power of the court to grant a stay of proceedings, pursuant to s24(1) of the Charter,

because of a breach of the accused’s constitutional right to be tried within a reasonable time,

and the jurisdiction of the court to stay proceedings which would constitute an abuse of its pro-

cess, are separate and distinct remedies for separate and distinct mischiefs. They serve dierent

interests. They are guided by dierent principles. It is therefore my view that they should be

considered separately, and not as complementary portions of one single complaint.” WoodJA

went on to explain that a stay granted following an infringement of s11(b) is meant to vindicate

the individual rights of the accused, while a stay granted because of an abuse of process is meant

© 2023 Emond Montgomery Publications. All Rights Reserved.

Chapter  Stays of Proceedings 77

• that the police investigation amounted to entrapment.5

Stays of proceedings for breaches of section 11(b) are relatively common for the

reason that they have been recognized as the minimum remedy for a breach of that

right.6 Their application in the section 11(b) context is therefore relatively straight-

forward and will be dealt with separately.

Stays of proceedings for an abuse of process are granted more rarely. Because

the common law abuse of process doctrine has been largely subsumed within the

Charter jurisprudence, an abuse of process will typically amount to a breach of the

accused’s right to make full answer and defence under section 7 or the right to a fair

trial under section 7 or 11(d), or both. Either way, a stay of proceedings will be the

ultimate option on the court’s remedial menu under section 24(1). In this context, a

stay of proceedings is reserved for the “clearest of cases,” a standard that is rife with

complexity and uncertainty in its application.

As explained below, a stay is the automatic remedy where police entrapment is

established. However, the legal preconditions for a successful claim of entrapment are

relatively stringent, rendering successful claims somewhat rare.

II. Key Concepts in This Chapter

• A judicial stay of proceedings is closely associated with the doctrine of abuse of

process.

• “Abuse of process” encompasses a wide array of circumstances in which it

would be fundamentally unfair or inappropriate to allow the prosecution to con-

tinue—usually, but not always, entailing serious state misconduct.

• There are two categories of cases in which an abuse of process may be found:

the main category, which is about trial fairness, and the residual category, which

is about everything else.

– In either category, a stay is only granted in the “clearest of cases.”

• There is a three-part test for a stay of proceedings based on abuse of process:

1. The prejudice to the accused’s right to a fair trial or the integrity of the justice

system will be manifested, perpetuated, or aggravated through the conduct

of the trial or by its outcome.

2. There is no alternative remedy capable of redressing the prejudice.

“to prevent the court’s process from being enlisted in a proceeding which would damage its

integrity.” As explained below, the merger of the Charter and common law abuse of process

doctrines in R v O’Connor, [1995] 4 SCR 411, 1995 CanLII 51 has narrowed this divide, though

the focus of the abuse-of-process analysis remains prospective rather than strictly remedial.

5 Entrapment is itself a kind of abuse of process (R v Ahmad, 2020 SCC 11 at paras 16-17) but is

treated here separately because of its distinct analytical framework.

6 R v Rahey, [1987] 1 SCR 588 at para 51, 1987 CanLII 52, Lamer J.

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