Recommencing previously stayed proceedings

Recommencing previously stayed proceedings

DATE: May 20, 2008

SUBJECT: THE CRITERIA TO BE APPLIED IN CONSIDERING WHETHER TO RECOMMENCE
PROCEEDINGS WHICH HAD BEEN STAYED BY THE CROWN

BACKGROUND AND GOVERNING PRINCIPLES:

Pursuant to section 579(1) of the Criminal Code of Canada, the Attorney General has the power to stay proceedings. As outlined in the guideline Terminating Proceedings, this power has been delegated to Crown prosecutors.

The recommencement of previously stayed proceedings is often subject to close scrutiny by the courts and the public. As such, it is important that the power to recommence these proceedings be exercised judiciously. As detailed next, the decision must depend upon the particular circumstances involved, and upon the evidentiary and public interest factors outlined in the guideline The Decision to Prosecute. The approval of the responsible Chief Crown Prosecutor or Director, the Assistant Deputy Minister, and the Deputy Minister will be required prior to proceedings being recommenced.

CRITERIA AND PROCEDURE:

General Criteria:

  1. Proceedings that were stayed pursuant to section 579(1) of the Criminal Code of Canada may be recommenced within one year of the stay (or within such shorter limitation period as may pertain to the charge) if:
    1. there exists a reasonable likelihood of conviction;
    2. it is in the public interest to recommence proceedings;
    3. recommencing proceedings would not be an abuse of process; and
    4. recommencing proceedings would not deprive the accused of any right, including the right to a trial within a reasonable time.

Authorization to Recommence Proceedings:

  1. Where a Crown prosecutor wishes to recommence previously stayed proceedings, he or she shall advise the responsible Chief Crown Prosecutor or Director of the recommendation and of all of the circumstances that will inform the decision as to whether to recommence the proceedings. If the Chief Crown Prosecutor or Director agrees with the Crown prosecutor’s recommendation, he or she shall forward the recommendation to the Assistant Deputy Minister (Criminal Justice) who, if he or she also agrees with the recommendation, will seek the authorization of the Deputy Minister to recommence the proceedings. It is only if such authorization is granted that the proceedings may be recommenced.