In all criminal matters there is a power vested in the Attorney General by the Criminal Codeto enter a stay of proceedings in:
- Any matter involving an indictable offence “after an indictment has been found” and before judgement (section 508) and
- Any matter being dealt with under summary conviction procedure, anytime after proceedings are commenced and before judgement (section 732.1).
The power is the statutory version of the common law ***nolle prosequi*** whereby the Crown, through its chief law enforcement officer, has the absolute prerogative to prevent any matter from being prosecuted where the public interest is threatened by continuation of the proceedings.
The effect of a stay of proceedings has been described as putting the charge in a legal limbo. That is, the Crown may proceed on the same charge any time within 12 months by giving notice of recommencement to the clerk of the court. If no such notice is given within one year, “the proceedings shall be deemed never to have been commenced”.
The practice has developed in British Columbia, apparently in the past 25 years, of both Federal and Provincial Attorneys General delegating to local prosecutors the authority to determine when proceedings should be stayed. As a result, prosecutors now use stays frequently when, for any of a number of reasons, they do not wish a case to proceed.
In most other Canadian jurisdictions, the use of the stay is recognized as an extraordinary power vested solely in the hands of the Attorney General when she or he personally determines that continuation of the prosecution is not advisable. It is an arbitrary power in the sense that the court has no discretion with respect to a properly directed stay.
In 1971, the last year for which Statistics Canada has published figures, there were a total of 2,863 indictable offence charges stayed in Canada. By way of comparison, in British Columbia 1,836 charges were stayed out of 19,455 charges; in Ontario 70 charges were stayed out of 49,790.
Current figures compiled by provincial court administrators indicate that the numbers of stays used in British Columbia continues to be astronomically high in the Provincial Court of Vancouver (in both summary conviction and indictable offence matters), 3,646 stays were entered in 1973, and 3,753 in 1974.
The argument has been raised that many practices that have developed in British Columbia respecting the use of stays, violate the legal technicalities of the Criminal Code. Whatever merit there might be to these arguments, it is submitted that the extensive use of the stay by prosecutors in and of itself creates significant problems threatening the civil liberties of British Columbians.
First, when a stay is entered the accused person is denied his or her “day in court” and, indeed, will likely never have a public determination of his or her guilt or innocence. At the same time, the judge is denied the right to hear a case which lower level judicial officers, for example justices of the peace, have legally determined should be brought before the courts. Both the accused and society are, therefore, denied the traditional benefits of the adversary system of justice.
Second, legal authorities support the proposition that the entry of a stay impairs the rights of the accused person to his or her civil remedies if he or she feels that they were wrongly brought before the courts.
Third, substantial comment has come from a number of Provincial court judges to the effect that stays are used to frustrate the proper exercise of judicial discretion. For example, it is the acknowledged practice of prosecutors in Vancouver to use a stay when they have been denied an adjournment. From the point of view of both the accused person and the system of justice as a whole, this is of vital significance since the decision of a Provincial court judge is always subject to the review of a higher court while the discretion to stay proceedings, exercised by the prosecutor, cannot be reviewed or appealed.
Finally, the extensive use of stays is dangerous because there is no requirement that reasons for the termination of proceedings appear on the court record. In fact, stays are often entered out of court. The procedure, being both clandestine and arbitrary, fosters secrecy and suspicion about the nature of the judicial system. The stay is uniquely suited to disguise favouritism and discrimination in the criminal law system in that the true reasons for suppressing particular proceedings are virtually unascertainable by the courts, or anyone outside of the prosecution.
Concerned members of the judiciary in British Columbia have expressed concern that in some instances the power is, in fact, abused. However, the existence of actual or perceived abuses of this power is, perhaps, no more important than the fact that the power is of a nature that lends itself to abuse. It is vitally important that administration of criminal justice should be at all times above suspicion.
Other Canadian jurisdictions appear to function quite effectively without the frequent use of stays by local prosecutors. In day-to-day courtroom situations, Ontario prosecutors and those in most other Canadian provinces, rather than stay proceedings when they do not wish the case to continue, allow the charge to be dismissed for want of prosecution or apply to the presiding judge to allow the charge to be withdrawn.
Whether or not the use of the stay in British Columbia is legally sound is a matter that has never received comprehensive judicial determination, in view of the fact that most lawyers and judges in British Columbia have grown accustomed to the current practice, a definitive assessment is unlikely unless a case on the subject proceeds to the Supreme Court of Canada. However, the protection of civil liberties would be more adequately served and a fair and open judicial system encouraged, if the power to stay proceedings was used sparingly, and exercised by the Attorney General personally.
