DATE: May 20, 2008
SUBJECT: IF THE PROCEEDINGS ARE TO BE TERMINATED, THE CRITERIA TO APPLY IN ASSESSING
WHETHER TO WITHDRAW CHARGES, STAY PROCEEDINGS, OR CALL NO (FURTHER) EVIDENCE
The control of a prosecution, including the ability to terminate it and the ability to select the manner of termination, is an important dimension of each Crown prosecutor’s quasi-judicial responsibilities. There are a number of ways in which a prosecution may be terminated other than by proceeding to a verdict. The Crown has the discretion as to which avenue to choose and this prosecutorial discretion is not ordinarily reviewable by the courts. The Crown may:
- withdraw a charge at any time prior to a plea by the accused, or with the leave of the court, after a plea has been entered;
- enter a stay of proceedings; or
- proceed with the trial but elect not to call any evidence or to stop calling further evidence, and ask the judge or jury to acquit.
The avenues that a Crown prosecutor selects in terminating a prosecution have different legal consequences. As outlined next, the choice must depend on the particular circumstances involved, and upon the evidentiary and public interest factors outlined in the guideline The Decision to Prosecute.
CRITERIA AND PRINCIPLES:
- Crown prosecutors have the power to withdraw charge(s) or an Information.
- A withdrawal is not the equivalent of a determination of the merits of the criminal charge(s). And there is judicial authority supporting the power of the Crown (barring evidence of bad faith or improper motive) to lay a new Information immediately after a previous one has been withdrawn prior to evidence being called (i.e., before the accused was in jeopardy as regards the withdrawn charge(s)): R. v. Selhi  1 SCR 277, R. v. C.(S.S.) (2001) 301 AR 25 (QB). In such cases, the special plea of autrefois acquit could not be plead.
- Charge(s) can be withdrawn by a Crown prosecutor prior to the entry of a plea or the preferring of an Indictment. After this time, most authorities hold that leave of the Court is required before charge(s) may be withdrawn.1
- The withdrawal of charge(s) is an appropriate exercise of discretion in instances in which the Crown prosecutor determines that:
- reasonable and probable grounds did not exist to lay the charge;
- there is no reasonable likelihood of conviction;
- it is not in the public interest to continue the prosecution; or
- the charge laid was incorrect and the Crown intends to proceed on a different (even a more serious) charge.
- When the accused is represented by counsel, such counsel should be advised by the Crown prosecutor immediately upon the decision being made to withdraw the charge(s).
- The Crown may stay proceedings at any time after proceedings have been commenced and before judgement.
- The power of the Attorney General to terminate proceedings by directing a stay of proceedings as outlined in section 579(1) of the Criminal Code of Canada has been delegated to all agents of the Attorney General. The staying of proceedings is an administrative act involving a direction to the Clerk of the Court by the Attorney General or his agent. By their nature, stays are not subject to control by the courts and no explanation for the stay is required. Because the Attorney General and his agents exercise their discretion to stay proceedings without judicial supervision or intervention, it is essential that decisions to stay proceedings be made on a principled basis and in a manner that serves the public interest.
- This has been described by Professor Kent Roach as follows:
The power of the prosecutor to stay public or private prosecutions under s.579 of the Criminal Code has been described by the Supreme Court as one of five “core elements of prosecutorial discretion” [Krieger v. Law Society (Alberta) 2002 SCC 65 at para. 46] that relate to whether a prosecution will be brought and what form a prosecution will take. As such, the decision whether to use a stay should be made independently by the prosecutor in accordance with the traditions of the prosecutor as a Minister of Justice. At the same time, the use of the prosecutorial stay like other exercises of prosecutorial discretion, will be treated with deference by the courts and other parts of government.2
- Generally, a stay is appropriate when proceedings in regard to a charge are being discontinued and the public interest requires that the Crown retain the right to recommence those proceedings within one year (or within such shorter limitation period as may pertain to the charge).
- Subject to the guideline Recommencing Previously Stayed Proceedings, the stayed proceedings may be recommenced at any time within a year (or within such shorter limitation period as may pertain to the charge). If the proceedings are not recommenced within the required time period, they then are deemed never to have been commenced and the former accused may be charged with the same offence for the same conduct at any time.
- Staying the proceedings is an appropriate exercise of discretion in instances in which the Crown prosecutor determines that there is a reasonable likelihood of recommencing the proceedings but it has become necessary, for example, for the police to conduct further investigation that was previously unforeseen.
- When deciding whether to enter a stay of proceedings, the Agent should consider the following factors:
- the circumstances of the case and the reason for the inability of the Crown to proceed with the trial;
- the merits of the particular case (including the sufficiency of evidence and the likelihood of conviction);
- the relative importance of the case;
- the likelihood of recommencement.
- The following are examples of instances in which it may be appropriate to utilize a stay of proceedings:
- when an essential witness does not attend court as required or instructed, and there are reasonable grounds to believe that the witness has been threatened, intimidated or improperly persuaded not to attend court;
- an essential witness is unable to give evidence due to illness, trauma, injury, temporary mental impairment, or other non-permanent circumstance, and there are reasonable grounds to believe that the witness will be able to testify within one year (or within such shorter limitation period as may pertain to the charge);
- as part of a resolution agreement, where there is reason to believe that the withdrawal of a charge (or the offering of no evidence in regard to a particular charge) may subsequently lead to a plea of autrefois acquit and thus frustrate the resolution agreement.
- A stay should not be entered, absent exceptional circumstances, to circumvent an adverse judicial ruling. To do so may result in the recommenced proceedings being judicially stayed on the basis of abuse of process. Judicial errors are to be corrected through the appeal process. An example of an exceptional circumstance may be found in R. v. Scott (1990), 61 C.C.C. (3rd) 300 (S.C.C.) wherein a stay was entered in order to prevent the disclosure of the identity of a confidential informant (On this topic, see also guideline Confidential Police Informants (Privilege)). The prior approval of the responsible Chief Crown Prosecutor is required before a stay may be entered for the purpose of circumventing a judicial ruling that has been delivered or intimated by the court. In instances in which it is not possible to seek approval prior to entering the stay, the Crown prosecutor must report the fact that they entered a stay after the fact.
- When the accused is represented by counsel, such counsel should be advised by the Crown prosecutor immediately upon the decision being made to stay the proceedings.
Call No (Further) Evidence
- It is an appropriate exercise of discretion for Crown prosecutors to commence the trial but to elect to call no evidence and request an acquittal, in instances in which there is not a reasonable likelihood of a conviction, nor a reasonable likelihood of recommencing the proceedings.
- In instances in which the Crown has called some evidence, it is an appropriate exercise of discretion for Crown prosecutors to call no further evidence and request an acquittal, if the Crown prosecutor determines that the evidence is so manifestly unreliable that it would be unreasonable to convict. This follows even though there may be some evidence on which the trial judge likely would deny a motion for a directed verdict.
- Unlike stays or withdrawals, this step results in a not guilty verdict and the accused would be able to plead autrefois acquit in relation to any subsequent reinstatement of charges.
- A Crown prosecutor may properly elect to call no evidence (rather than proceeding with the matter to its conclusion) in circumstances in which there has been a significant adverse ruling. Upon the finding of not guilty, the Crown may then appeal the acquittal: R v Power  1 S.C.R. 601. This step should only be taken in circumstances in which the adverse ruling significantly detracts from the Crown’s case. It should not be used if the remainder of the Crown’s case provides a sufficient basis for a conviction.
- Although the power to terminate proceedings has been delegated as set out in this policy, the issue is a sensitive one and all prosecutors are reminded of the benefit of consulting with supervisors and senior colleagues. Such consultation is particularly desirable in relation to a major charge or where special circumstances exist. Such charges or circumstances might include the prosecution of a public official, such as a police officer, or alleged criminal conduct that resulted in a death.
1 Roach, Kent, Report Relating to Paragraph 1(f) of the Order In Council for the Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell at p. 23 and authorities cited therein (On-line Cite: http://www.driskellinquiry.ca/pdf/roachreport.pdf )
2 Roach, Kent, Report Relating to Paragraph 1(f) of the Order In Council for the Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell at p. 13 (On-line Cite: http://www.driskellinquiry.ca/pdf/roachreport.pdf )