Stay of Proceedings
A stay of proceedings is a court-ordered or Crown-directed suspension of a criminal prosecution. The matter is set aside and, in most cases, never resumes. There are two main routes to a stay: a Crown-directed stay under section 579 of the Criminal Code; and a judicial stay as a Charter remedy under section 24(1). Each operates differently and carries different consequences.
Mass Tsang's criminal lawyers track delay carefully and pursue stays where the law supports them. For more on trial-timing rules, see our entry on Trial Within a Reasonable Time (Jordan).
Crown-directed stay (section 579)
The Crown can direct a stay of proceedings at any time before judgment. The decision is unilateral — the court enters the stay on the Crown's direction. The Crown can re-commence the prosecution within one year of the stay; after one year, the matter is deemed never to have been commenced. Crown stays are used where the Crown decides not to proceed but wants to preserve the option to revisit (typically for evidence developments, witness issues, or other procedural reasons). Crown stays do not require the accused's consent.
Judicial stay as Charter remedy
A judicial stay under section 24(1) is a court-ordered remedy for a Charter breach that has caused such prejudice to the accused or the integrity of the justice system that no lesser remedy can address it. Judicial stays are reserved for the "clearest of cases." The Supreme Court's framework in R v Babos, 2014 sets out the test: (1) is there prejudice to the accused's right to a fair trial or to the integrity of the justice system; (2) is there no alternative remedy; (3) does the balance of interests support a stay.
Jordan delay stays
The most common judicial stays in modern practice are Jordan stays — terminations of prosecutions for unconstitutional pre-trial delay under section 11(b) of the Charter. R v Jordan, 2016 established presumptive ceilings of 18 months in Provincial Court and 30 months in Superior Court, beyond which delay attributable to the Crown or institution is presumptively unconstitutional. Where delay exceeds the ceiling and is not justified, the remedy is a stay.
Abuse of process stays
Stays can also follow abuse-of-process findings — improper Crown conduct, breach of police promises, entrapment, or other state misconduct that undermines the integrity of the proceedings. The threshold is high; the Court reserves the remedy for cases where prosecution itself would bring the administration of justice into disrepute.
Effect of a stay
A judicial stay terminates the prosecution. The accused is treated as not having been convicted. Bail conditions are vacated; the matter ends. A Crown-directed stay similarly ends the active prosecution but preserves the option to re-commence within one year. After the year passes (or where the stay is judicial), the matter is over.
Related glossary terms
