Wednesday, May 1, 2013

Stay of prosecution only proper to stop continuing or future abuse

Antorisa Investments Ltd. v. Vaughan (City), 2013 ONCA 287 provides:

The issue, however, was whether a stay of proceedings was the only remedy to address that abuse in accordance with the test set out by the Supreme Court of Canada most recently in R. v. Nixon, 2011 S.C.C. 34 at para. 42. As has repeatedly been said by the Supreme Court of Canada, a stay of proceedings is a prospective remedy; it is to protect against the abuse continuing to be manifest, perpetuated or aggravated through the conduct of the trial or by its outcome and when no other remedy is reasonably capable of removing the prejudice. That test simply was not made out. The alleged lack of disclosure could be remedied by any number of lesser remedies. The alleged misconduct by Officer Booth did not require a stay. It could be taken into account in considering her credibility, and might well have led to wholly disregarding her testimony. But, to stop the prosecution because of that misconduct was not required to remedy the prejudice.

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