Stay of Proceedings in Criminal Trials: Temporary Halt or Permanent End

By Last Updated: October 6, 2023

Stay of Proceedings

Stay of Proceedings in Criminal TrialsA stay of proceedings refers to the suspension or halting of court proceedings, which can be initiated either at the direction of the prosecuting authority (prosecutorial stay) or by a judge (judicial stay). In the case of a prosecutorial stay, the Crown holds the authority to suspend the proceedings, they have the option to restart the legal process within a year as per s. 579(1) of the Criminal Code. On the other hand, a judicial stay, ordered by a judge, results in a permanent suspension of the proceedings. Typically, a judicial stay is employed as a remedy for severe violations of the Canadian Charter of Rights and Freedoms, aiming to safeguard individual rights and liberties.

What is a Prosecutorial Stay?

A prosecutorial stay occurs when the Crown prosecutor exercises the authority granted under s. 579(1) of the Criminal Code to suspend court proceedings. Within this provision, the Crown is empowered to stay the proceedings for a maximum duration of one year. It is crucial to note that if the proceedings are not reinitiated within this stipulated time frame, they are legally considered to have never commenced.

The decision to opt for a prosecutorial stay can be based on various reasons, reflecting the complexity of legal considerations. Such grounds may include situations where there is insufficient evidence to support a reasonable prospect of conviction, instances where pursuing the prosecution would not serve the public interest, or when a youth offender is referred to extrajudicial sanctions such as an alternative measure. Each of these considerations plays a significant role in the decision-making process for the Crown when contemplating the stay of proceedings.

What is a Judicial Stay of Proceedings?

A judicial stay of proceedings represents the most profound recourse within our legal system, as it permanently precludes any revisit of charges against the individual concerned. This exceptional measure is sparingly granted and typically arises in rare circumstances, specifically when the integrity of the justice system comes under scrutiny.

An illustrative 1995 Supreme Court ruling, R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411, sheds light on the instances where such stays are deemed appropriate. The judgment underscores that the trial judge may exercise their discretion to order a stay only in the “clearest of cases,” demanding unequivocal conviction that proceeding further with the trial would severely compromise the integrity of the judicial process.

Granting a judicial stay of proceedings is a momentous step for the court, taken only when an individual’s Charter rights have suffered such severe breaches that the sole recourse remains to stay the proceedings. The authority for trial judges to issue such stays is derived from s.24(1) of the Canadian Charter of Rights and Freedoms. This section stipulates that if an individual’s rights or freedoms, as guaranteed by the Charter, have been infringed or denied, they are entitled to seek appropriate and just remedies from the court under the prevailing circumstances.


Why would someone get a stay of proceedings?

A stay of proceedings can be granted for various reasons, serving as a significant remedy within the legal system. One common instance is when the prosecuting authority, often the Crown attorney, initiates a “prosecutorial stay” under the authority of s.579 (1) of the Criminal Code. This enables them to temporarily suspend the court proceedings for up to a year. If the proceedings are not resumed within this period, they are deemed never to have commenced. Another vital scenario is the issuance of a “judicial stay” by a judge, which is considered the ultimate remedy in exceptional circumstances. This form of stay permanently halts the proceedings and is typically awarded when the integrity of the justice system is at risk or when a person’s Charter rights have suffered grave violations that demand such action. Ultimately, a stay of proceedings ensures that the principles of justice, fairness, and individual rights are upheld in the legal process.

What is the effect of a stay of proceedings? 

The effect of a stay of proceedings is significant in the legal context. When a stay is granted, it results in the temporary or permanent suspension of court proceedings, depending on whether it is a “prosecutorial stay” or a “judicial stay.” In the case of a prosecutorial stay, initiated by the prosecuting authority, such as the Crown attorney, the proceedings are halted for a specific period, usually up to a year, as permitted by s.579 (1) of the Criminal Code. If the proceedings are not recommenced within this timeframe, they are deemed never to have commenced. On the other hand, a judicial stay, issued by a judge, brings a permanent end to the proceedings, and the charges cannot be revisited. This ultimate remedy is only awarded in exceptional circumstances, typically when the integrity of the justice system is at stake or when a serious breach of a person’s Charter rights necessitates such action. Overall, a stay of proceedings ensures a crucial safeguard of justice, protecting individual rights and maintaining the integrity of the legal process.

Does stay of proceedings mean not guilty? 

No, a stay of proceedings does not automatically imply a verdict of “not guilty” for the accused. While a stay does result in the suspension or permanent cessation of court proceedings, it differs from an acquittal or a finding of “not guilty” after a trial. A stay of proceedings can be initiated for various reasons, such as when the prosecuting authority, typically the Crown attorney, decides to halt the proceedings temporarily with a “prosecutorial stay” or when a judge issues a “judicial stay” due to exceptional circumstances, often related to the integrity of the justice system or serious Charter rights violations. The effect of a stay is distinct from an acquittal, as it does not determine guilt or innocence; rather, it addresses specific procedural issues or concerns related to the fairness and integrity of the legal process.

Who can order for stay of proceedings in Canada?

In Canada, both the prosecuting authority and judges hold the authority to order a stay of proceedings. The prosecuting authority, typically represented by the Crown attorney, can initiate a “prosecutorial stay” under s.579 (1) of the Criminal Code, which allows them to suspend court proceedings for a specific period, usually up to a year. If the proceedings are not recommenced within this timeframe, they are deemed never to have commenced. On the other hand, a “judicial stay” can be issued by a judge, but this is an exceptional remedy granted only in rare circumstances, particularly when the integrity of the justice system is at risk or when there are grave violations of a person’s Charter rights. Both forms of stays play crucial roles in upholding the principles of justice and fairness within t

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Michael Oykhman

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Michael Oykhman is a senior lawyer and founder of Strategic Criminal Defence, a full-service criminal law firm with central law offices across Western Canada and Ontario.

My professional experience consists of countless court appearances and thousands of successful defences and satisfied clients. Over the last 10 years, I have worked to build a law office where all the lawyers share our collective experience, resources, and passion to help people. Our team approach to legal representation is client–rather than only law–centred. We look for opportunities to add value to our clients through strategic thinking and creative solutions.

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