Thursday, July 23, 2009

Charges stayed because Crown comes into possession of privileged document

Today has been a slow day for new cases but here is an interesting case regarding the stay of civil cases while a criminal case is pending:

 


Falloncrest Financial Corp. v. Ontario; Nash v. Ontario, [1995] O.J. No. 4043 (CA):


As to issue (4), no general rule in this jurisdiction requires a stay of civil cases merely because criminal charges relating to the same matter are pending. In fact, a court will normally deny a stay unless the applicant demonstrates that his or her case is an extraordinary or an exceptional one: see Stickney v. Trusz (1973), 2 O.R. (2d) 469 at p. 471, 45 D.L.R. (3d) 275 (H.C.J.), affirmed (1974), 3 O.R. (2d) 538 at p. 538, 46 D.L.R. (3d) 80 (Div. Ct.), affirmed (1974), 3 O.R. (2d) 538 at 539, 46 D.L.R. (3d) 80 at 82 (C.A.), leave to appeal refused [1974] S.C.R. xii, 28 C.R.N.S. 127n.

Several reported cases have suggested that the rationale underlying a stay of a civil action pending the conclusion of a related criminal prosecution is the protection of the accused's right to a fair trial: see, for example, Seaway Trust Co. v. Kilderkin Investments Ltd. (1986), 55 O.R. (2d) 545, 29 D.L.R. (4th) 456 (H.C.J.); Belanger v. Caughell (1995), 22 O.R. (3d) 741 (Gen. Div.). In the present case, however, the party moving for the stay is the Crown, and the accused's rights are not at issue. The Crown must, then, show that other extraordinary or exceptional circumstances justify a stay.

The cases are clear that the threshold test to be met before a stay is granted is high. The mere fact that criminal proceedings are pending at the same time as civil proceedings is not sufficient ground for a stay of the latter: Stickney v. Trusz, supra. Even the potential disclosure through the civil proceedings of the nature of the accused's defence or of self-incriminating evidence is not necessarily exceptional: see Belanger v. Caughell, supra; Stickney v. Trusz, supra; Seaway Trust Co. v. Kilderkin Investments Ltd., supra. This high threshold test should not be relaxed merely became it is the Crown that requests the stay. An applicant, whether it is the Crown or the accused, must meet the same burden of proving extraordinary or exceptional circumstances. The test is not on a balance of convenience for the Crown and something higher for the accused. To the extent that the motions court judge held that it is, he erred.

 

 

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