A judicial stay in a criminal matter is rare. Only where there is an evidentiary basis to establish the need for a stay should such be granted.
Today's Court of Appeal decision in R. v. McCue, 2010 ONCA 15 makes this point clear:
[24] Concerning the second error, the trial judge failed to reference any of the legal principles applicable on an application to stay criminal proceedings.
[25] A judicial stay of criminal proceedings is a remedy reserved for the clearest cases of abuse where either:
o any prejudice caused by the abuse would be manifested, perpetuated, or aggravated with a trial or its outcome; or
o no other remedy is reasonably capable of removing the prejudice.
See R. v. Regan, [2002] 1 S.C.R. 297.
[26] The facts of this case fall far short of the type of prosecutorial conduct that would warrant the extraordinary remedy of a stay of a criminal proceeding. Once the trial judge's finding that Crown counsel placed the respondent in an untenable position is removed, there is simply no basis for a finding of abuse of process. In these circumstances, it follows that there is also no basis for making an award of costs against the Crown.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
www.jmortonmusings.blogspot.com
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