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Criminal - Stays. R. v. Nguyen
In R. v. Nguyen (SCC, 2026) the Supreme Court of Canada considered issues of "the forfeiture of criminally tainted property to the Crown".
Here the court considers the effect of a criminal stay [here for Charter s.11(b) trial delay] on the operation of the criminal property forfeiture provisions:B. A Stay of Proceedings Does Not Exclude Criminal Forfeiture Jurisdiction
[66] Having set out some general principles relevant to the statutory schemes advanced on appeal, I turn to consider the first issue raised by the parties, concerning the effect of the stay on the availability of criminal forfeiture.
[67] It is true that a judicial stay brings criminal liability proceedings to a conclusive end and leaves the accused in a position of presumptive innocence (see R. v. Bouvette, 2025 SCC 18, at para. 64, citing R. v. R.V., 2021 SCC 10, [2021] 1 S.C.R. 131, at para. 76, and Jewitt, at p. 148). In my respectful view, however, the Court of Appeal erred in relying on this fact to suggest that the stay of the proceedings aimed at determining the respondents’ criminal liability precluded all criminal forfeiture jurisdiction (C.A. reasons, at paras. 16 and 19-20). On this point, I prefer the conclusion of Perreault J. in the Court of Québec, who decided that a stay for unreasonable delay was not a bar to forfeiture proceedings here because, as he wrote, [translation] “[t]he main purpose of the forfeiture of offence-related property is to take that property out of circulation, not to punish the person who committed the offence” (para. 139). This stay of proceedings does not necessarily limit forfeiture jurisdiction, nor does it necessarily prevent the Crown from leading evidence of criminality underlying the stayed charges in the context of an application for forfeiture.
[68] First, to the extent the Court of Appeal suggested that forfeiture would only be available if criminality had already been proven against the respondents beyond a reasonable doubt in a criminal trial (paras. 19-20), I respectfully disagree. Many provisions permit criminal forfeiture without a finding of guilt against the possessor of the property (see, e.g., ss. 462.38(2), 490(9), 490.2(2) and 491.1 Cr. C.; s. 17(2) CDSA). Recall, for example, that s. 491.1 Cr. C. provides, following a trial, for the forfeiture of property obtained by the commission of an offence “whether or not the accused has been convicted”. Of these provisions, some even permit criminal forfeiture without evidence having been heard in a criminal trial at all (see, e.g., ss. 83.14(5) and 117.05(4) Cr. C.). Recall the provision addressing obscene publications, which can be seized and made subject to forfeiture without a trial under s. 164(4) Cr. C. Therefore, the fact that a stay of proceedings means that the respondents’ criminal liability has not been, and cannot be, established at trial for the relevant offences does not necessarily preclude criminal forfeiture. I agree with Poulin J. that a [translation] “stay of the criminal proceedings for unreasonable delay did not ipso facto lead to a stay of the proceedings relating to the property” (Sup. Ct. reasons, at para. 29).
[69] Second, the Court of Appeal was mistaken to suggest that the stay forecloses any possibility that criminality could be proven against the respondents in forfeiture proceedings (para. 20). Unlike criminal liability proceedings, forfeiture proceedings do not involve charges brought against accused persons and do not place their liberty in jeopardy. Therefore, they do not engage double jeopardy protections (see generally Vellone, at para. 41; Breton, at para. 45). The respondents are neither “accused” within the meaning of the Criminal Code nor persons “charged with an offence” for the purposes of s. 11 of the Charter. The Court of Appeal’s reliance on Jewitt was accordingly misplaced (para. 16). Jewitt equates a stay to an acquittal for the purposes of the plea of autrefois acquit and the exercise of appeal rights, both engaging a person’s risk of criminal liability (at pp. 145-48) and, ultimately, their liberty interests. It says nothing, however, about the effect of a stay or acquittal on subsequent forfeiture proceedings.
[70] Indeed, even when an accused is acquitted following a trial, the Crown may lead evidence in subsequent criminal proceedings on some issues raised in the context of that trial. Issue estoppel applies only to preclude the relitigation of issues that were resolved in the accused’s favour at trial (see R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, at paras. 31 and 33). To engage issue estoppel, the person invoking it “must show that the question was or must necessarily have been resolved on the merits in the accused’s favour in the earlier proceeding” (para. 52; see also R. v. Punko, 2012 SCC 39, [2012] 2 S.C.R. 396, at paras. 7-8). Showing that an issue was raised and an acquittal was entered is not enough: there “must be a necessary inference from the trial judge’s findings or from the fact of the acquittal that the issue was in fact resolved in the accused’s favour” (Mahalingan, at para. 52).
[71] Accordingly, where the issues required to establish whether property is criminally tainted were not decided in the accused’s favour at trial, appellate courts have concluded that it is open to the Crown to lead evidence on those issues to support forfeiture even after the accused is acquitted (see Breton, at para. 41; Vellone, at para. 42). For example, in Breton, after critical evidence was excluded under s. 24(2) of the Charter, the accused was acquitted (para. 42). Writing for a unanimous court, Fairburn A.C.J.O. concluded that the Crown was not estopped from proving that property related to the charges was unlawfully possessed and having it forfeited under s. 490(9) Cr. C. following the acquittal (para. 41). Since the property was excluded as evidence at trial and determining its provenance was not necessary to the acquittal, issue estoppel did not apply (paras. 46-53).
[72] Here, the respondents’ criminal liability proceedings were stayed before the trial began. As in Breton, the relevant issues were not necessarily decided in their favour as part of those criminal liability proceedings; indeed, nothing about the criminal allegations against the respondents was decided at the time the stay was entered. The stay flowed from the unreasonable delay in their trial, not reasonable doubt as to whether the charged offences were committed. In the circumstances, issue estoppel cannot prevent the Crown from leading evidence on that point in these distinct forfeiture proceedings. This accords with the Quebec Court of Appeal’s decision in Guimont, where the Crown was successful in establishing grounds for forfeiture after criminal liability proceedings had been stayed, as here, due to unreasonable delay. . R. v. Rees
In R. v. Rees (Ont CA, 2025) the Ontario Court of Appeal considered a further (and much later) appeal emanating from "a referral by the Minister of Justice, made pursuant to s. 696.3(3)(a)(ii) ['Applications for Ministerial Review — Miscarriages of Justice - Powers of Minister of Justice'] of the Criminal Code", which - after much incarceration - set aside a conviction for second degree murder, and ordered a new trial.
Here the court considers the contrasting appellate remedy options of new trial and stay:D. Stay or New Trial
[345] Since an acquittal is not appropriate, we must determine whether to order a stay or a new trial.
[346] The Crown asks that we stay the proceedings under Babos since it would not be in the public interest to prosecute. In the Crown’s submission, a stay is the most public and transparent way to bring this matter to a conclusion.
[347] The appellant, on the other hand, asks us not to stay the proceedings. He wants his acquittal and says that if we stay the proceedings, he will be deprived of all possibility of that acquittal at a new trial.
[348] We accept that we have jurisdiction to stay the proceedings under Babos. In Babos, the court held that a stay of proceedings is a discretionary remedy, one that flows in the clearest of cases where one of two things is operative: (i) the state conduct has compromised the fairness of the accused’s trial (often referred to as the “main category”); or (ii) where the state conduct may not compromise trial fairness, but it risks undermining the integrity of the judicial process (often referred to as the “residual category”): at para. 31.
[349] Although there are two categories, the test remains the same for both, involving as it does three elements: (i) prejudice to the accused’s right to a fair trial or the integrity of the justice system; (ii) no alternative remedy capable of redressing the prejudice; and (iii) if there is still uncertainty after (i) and (ii), a balancing of various factors, including the societal interest in a final decision on the merits: Babos, at para. 32.
[350] The Crown argues that we should enter a stay of proceedings under the main category because of a clear unfairness to the appellant’s fair trial interests going forward. Quite simply, argues the Crown, there can be no fair trial this many years later. Therefore, we should stay the proceedings.
[351] We agree with the Crown that there can be no fair trial, but disagree that we should stay the proceedings.
[352] In our view, a fundamental concern in applying Babos is fairness to the accused. To grant a stay without regard to fairness from the appellant’s perspective would be paternalistic, especially in the wake of a miscarriage of justice. In this case, the appellant holds out hope for an acquittal if a new trial is ordered.
[353] Whether ordering a new trial will result in an acquittal remains to be seen. Although it is clear that the Crown will not be prosecuting this matter again, it is not at all clear what the Crown will do if the matter is returned to the Superior Court. This is very much unlike Bouvette, where the Crown made clear that if the Supreme Court did not enter the acquittal, the Crown would ask that Ms. Bouvette be arraigned, call no evidence and invite the acquittal. Returning the matter was pro forma in those circumstances: Bouvette, at para. 83.
[354] But those are not the circumstances here. Here, the Crown has left open which avenue it will pursue. It may (i) arraign and call no evidence (which would result in an acquittal); (ii) withdraw the charge; or (iii) enter a stay of proceedings pursuant to s. 579 of the Criminal Code.
[355] There was a good deal of discussion at the hearing of this appeal about the third option, the Crown stay of proceedings. Because it was suggested that this is a route that the Crown might choose, we offer brief comment on the subject in an effort to avoid the matter returning to this court in any subsequent proceedings.
[356] The Attorney General and counsel instructed by the Attorney General are entrusted with significant powers and discretion. The s. 579 Crown stay is one such exercise of discretion:579 (1) The Attorney General or counsel instructed by the Attorney General for that purpose may, at any time after any proceedings in relation to an accused or a defendant are commenced and before judgment, direct the clerk or other proper officer of the court to make an entry on the record that the proceedings are stayed by the Attorney General’s or counsel’s direction, as the case may be, and the entry shall then be made, at which time the proceedings shall be stayed accordingly and any undertaking or release order relating to the proceedings is vacated. [357] If a proceeding is stayed under s. 579(1), it may either be recommenced or, where that does not happen “within one year after the entry of the stay of proceedings, or before the expiration of the time within which the proceedings could have been commenced, whichever is the earlier, the proceedings shall be deemed never to have been commenced”: s. 579(2).
[358] As the Crown Prosecution Manual for Ontario recognizes, a s. 579 stay is not appropriate unless there is an expectation of recommencing the proceeding within one year: Ontario Crown Prosecution Manual, “Charge Screening” at D.3. This policy follows the recommendation of former Chief Justice of Canada Antonio Lamer. In his 2006 commission of inquiry report, he criticized the use of the stay as a way to dispose of prosecutions and drafted model guidelines indicating that stays should only be used where “there is a reasonable likelihood of recommencement of proceedings”: The Right Honourable Antonio Lamer, P.C., C.C., C.D., The Lamer Commission of Inquiry Pertaining to the Cases of: Ronald Dalton, Gregory Parsons, Randy Druken: Report and Annexes (St. John’s: Office of the Queen’s Printer, 2006), at pp. 303-325. In other words, s. 579 should not be used in circumstances where the objective is simply to allow a charge to wither on the vine.
[359] We agree. A Crown stay is not to be used to make a charge disappear. Rather, it is to be used to provide an opportunity for the Crown to put a case it wishes to advance in order. Here, it appears that the Crown is not intending to put a case in order. To the contrary, it appears that the Crown is not intending to ever proceed with a new trial.
[360] With that said, we order a new trial and leave it for the Crown to exercise its discretion in an appropriate manner. . R. v. Rootenberg
In R. v. Rootenberg (Ont CA, 2024) the Ontario Court of Appeal considered, even if a Charter s.8 search and seizure violation had been committed, whether a stay would be merited as a criminal (Charter?) remedy:[7] On the second issue, the appellant argues that the trial judge erred in refusing to grant a stay because of strip searches to which he was subjected while in custody at the Toronto South Detention Centre awaiting trial. Most of the strip searches occurred before and after every time he left the Detention Centre for a court appearance or other reason. They also occurred before and after his shifts working in the kitchen at the Detention Centre. The appellant does not dispute that the correctional officers were authorized to conduct strip searches on these occasions. However, he takes issue with the way in which the searches were conducted. He says that most of the strip searches were conducted in open cubicles at the Detention Centre, which did not give him enough privacy, notably from female correctional staff and other inmates.
[8] We see no error in the trial judge’s analysis and conclusion that the appellant’s section 8 Charter rights were not violated. These were authorized strip searches conducted for the purpose of ensuring the safety of people at the detention centre. The trial judge acknowledged that there was room for improvement in how the searches were conducted, but that this did not rise to the level of a Charter breach. These findings were open to her on the evidence. Moreover, we agree with the trial judge’s conclusion that, even if the appellant’s Charter rights had been violated, this is not one of the “clearest of cases” that would warrant a stay of proceedings: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 at p. 45I. . R. v. Brown
In R. v. Brown (Ont CA, 2024) the Ontario Court of Appeal allows a Crown appeal from a Charter 7,8,9 and 24(2) breach finding that the 'Feeney warrant' used "did not authorize an unannounced entry and no exigent circumstances emerged after the warrant was issued that would justify a so-called dynamic entry", thus resulting in a trial partial stay of the charges:The trial judge’s ruling on the stay application
[31] After the Crown closed its case, the trial judge heard an application by the defence to stay all charges. Mr. Brown contended that the forcible, unannounced entry by police into his residence on October 15, 2020, violated his right to “life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”; under s. 7 of the Charter; his right against unreasonable search and seizure under s. 8; and his right against arbitration detention under s. 9.[5]
[32] The Crown conceded that the unannounced, forcible entry by police into Mr. Brown’s residence violated his rights under ss. 8 and 9. The trial judge held that it also violated Mr. Brown’s s. 7 rights.
[33] With respect to remedy, the trial judge held that the violations did not compromise the fairness of Mr. Brown’s trial, since no search was performed and no evidence was seized when the Feeney warrant was executed. The police misconduct therefore fell into the residual category of state misconduct that does not threaten trial fairness but risks undermining the integrity of the judicial process.
[34] Based on Babos, at para. 32, a stay of proceedings is warranted only if three requirements are met:(1) There must be prejudice to the accused’s right to a fair trial or to the integrity of the justice system that will be “manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”;
(2) There must be no alternative remedy capable of redressing the prejudice; and
(3) Where there is uncertainty about whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits”. [Citations omitted.] ....
[41] The trial judge considered that the identities of those affected by the dynamic entry was another relevant factor. Citing R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, and R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, she found that it was “particularly egregious that, as members of a racialized community with a history of over policing which has been, and continues to be, acknowledged by our Court of Appeal and Supreme Court, [Mr. Brown and his girlfriend] were subjected to such an invasion of their dignity and privacy without judicial authorisation”.
[42] The trial judge concluded that, in balancing the competing factors, it was important that there was a remedy available, a partial stay, which provided for a disposition on the merits of some very serious charges, “while staying the charges most directly related to the impugned conduct”. Considering the unique circumstances of the case, she held that a stay of the gun-related charges but not the drug charges was a just and appropriate remedy.
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[61] There is no principled reason why a partial stay would not be just and appropriate in some circumstances, in my view. In R. v. L.L.S., 2009 ABCA 172, 457 A.R. 113, a partial stay of charges against an accused who had been illegally strip-searched by police was upheld. The accused was charged with mischief based on her disruptive conduct prior to being brought to the police station, and with assaulting a police officer at the station after being told she would be strip-searched. The trial judge stayed the assault charge, but not the mischief charges. The accused appealed, arguing that all charges should have been stayed. The Court of Appeal of Alberta held that “[i]n deciding what remedy is ‘appropriate and just’ the trial judge is entitled to consider any temporal or causative factors, and the entire factual context”: L.L.S., at para. 3. It concluded that the partial stay order was reasonable in the circumstances.
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[67] The trial judge categorically dismissed the possibility that alternative remedies to a stay were available. In my view, she erred. Sentence reduction has repeatedly been recognized as a just and appropriate s. 24(1) remedy: R. v. Mills, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863, at pp. 974-79. In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 60, Lebel J. identified numerous cases where a sentence reduction was ordered as a just and appropriate remedy for s. 7 breaches.
[68] Given the trial judge’s errors, I find that this court must conduct a fresh analysis of a just and appropriate remedy in this case. The court continues at paras 69-95, vacating the partial stay and ordering the trial continue.
. R. v. A.B.
In R. v. A.B. (Ont CA, 2024) the Ontario Court of Appeal considers a stay remedy, here after an abuse of process had been found:(2) A stay of proceedings is warranted
[47] The abuse of process doctrine is directed at egregious Crown conduct that either seriously compromises trial fairness or the integrity of the justice system: R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 50. This case is about whether the Crown conduct falls within the latter, residual category, serving to undermine the integrity of the administration of justice: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 73; Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391, at para. 89; R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, at paras. 41, 59; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31; and R. v. Brunelle, 2024 SCC 3, at para. 27.
[48] On rare occasions, in the “clearest of cases”, a stay of proceedings is warranted for an abuse of process. As recently affirmed in Brunelle, at para. 29, the test for determining whether a stay of proceedings is required involves three requirements:(1) there must be prejudice to the accused’s right to a fair trial or to the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54; Babos, at para. 32);
(2) there must be no alternative remedy capable of redressing the prejudice (Regan, at para. 54; Babos, at para. 32);
(3) where there is still uncertainty over whether a stay of proceedings is warranted after steps 1 and 2, the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” (Regan, at para. 57; Babos, at para. 32). [Emphasis added.] . R. v. Husband
In R. v. Husband (Ont CA, 2024) the Ontario Court of Appeal considers a stay as a Charter remedy in a criminal case:[1] Following a trial by judge alone, Robert Husband (“the appellant”) was convicted of discharge of a restricted firearm while being reckless to the safety of others, possession of a loaded restricted firearm, and possession of a firearm while subject to a weapons prohibition. There was no dispute that the appellant suffered from mental illness. He applied for a pre-trial stay of proceedings based on breaches of his Charter rights. He represented himself at the application, trial, and sentencing after discharging his counsel at the outset of the proceedings. The trial judge found the appellant’s rights had been violated in three ways: the police breached his s. 8 rights by an unjustified and improperly conducted strip search after the appellant’s arrest; correctional authorities violated the appellant’s s. 7 rights by using excessive force following the appellant’s suicide attempt in his prison cell; and, the appellant was kept in segregation-like conditions for a period of 232 days contrary to s. 12. However, the trial judge concluded that this was not one of the “clearest of cases” that required a stay of proceedings. Instead, he found that an alternative remedy was available: taking the Charter breaches into account in sentencing, if the appellant was convicted of any of the charges he was facing.
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(i) Conviction Appeal
[7] The appellant argues the trial judge made three errors in refusing to grant a stay: first, he gave too much weight to the seriousness of the charges the appellant faced; second, he failed to give proper weight to the seriousness of the Charter violations as they related to the appellant’s physical and psychological integrity; and third, he discounted the cumulative effect of a “pattern of violations” on the integrity of the justice system. The appellant seeks to have the convictions set aside and a stay of proceedings entered.
[8] A stay of proceedings is a discretionary remedy. The standard of review we must apply is well established. Appellate intervention is only required where a trial judge misdirects themselves in law, commits a reviewable error of fact, or renders a decision that is “so clearly wrong as to amount to an injustice”: see R. v. Babos 2014 SCC 16, [2014] 1 S.C.R. 309, R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509; and R. v. Gowdy, 2016 ONCA 989, 135 O.R. (3d) 371, at para. 65.
[9] All three arguments made by the appellant can be distilled into the overarching submission that the trial judge incorrectly applied the relevant legal principles in determining that a stay was not warranted in the circumstances of this case. We reject that submission and see no basis to interfere with the trial judge’s decision to dismiss the application for a stay of proceedings.
[10] In our view, the trial judge provided cogent and comprehensive reasons for refusing to grant a stay of proceedings. He noted that a stay of proceedings is the most drastic remedy a court can order because it permanently halts the prosecution of an accused. He also correctly stated, and carefully considered, the applicable test for a stay from Babos, at para. 32:(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”;
(2) There must be no alternative remedy capable of redressing the prejudice; and
(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits”. [11] The trial judge found the first requirement was met. While he found there was no reason to believe state conduct compromised trial fairness, he concluded, relying on Babos, at para. 35, that a case could fall in that category when conduct is “so troublesome that having a trial – even a fair one – will leave the impression that the justice system condones conduct that offends society’s sense of fair play and decency.” In short, he found that the focus is on preventing prejudice to the integrity of the justice system and he determined that the state had engaged in conduct that was offensive to fair play and decency.
[12] Under the second requirement, however, the trial judge determined that any prejudice could be adequately remedied by taking the Charter breaches into account at sentencing, if the appellant was convicted.
[13] Although not required, the trial judge went on to the third and final requirement. He noted that the offences in question were serious and that the Charter breaches were attenuated. First, although he found that the manner of search was “unacceptable”, he concluded that the decision to investigate whether the appellant was injured, as he claimed to be, was reasonable. He therefore found that the strip search was “not an egregious violation” of the appellant’s Charter rights. Second, with respect to the issue of excessive force, the trial judge noted that the appellant did not sustain any permanent injuries and that the correctional authorities were dealing with a highly emotional and panicked person when the assault took place. Finally, while the trial judge also found the appellant’s s. 12 rights were breached through the excessive use of segregation, he reasoned that the appellant’s time in segregation was largely concentrated in 2019. Since that time, the Central East Correction Centre had minimized or eliminated the use of segregation and introduced new programs for inmates. He also found it significant that the appellant had been given the opportunity to leave the unit where he was regularly subject to segregation, but declined to do so.
[14] In sum, considering the Charter violations cumulatively, the trial judge was not persuaded that this was one of those “clearest of cases” demanding a stay of proceedings. Rather, society’s interests in a trial on the merits prevailed. However, if convicted, the trial judge stated the Charter breaches would be taken into account at sentencing. We see no basis to interfere with this decision and we therefore dismiss the appeal from conviction. . R. v. Brunelle
In R. v. Brunelle (SCC, 2023) the Supreme Court of Canada considers 'stays' as a criminal remedy:C. Did the Superior Court Judge Err in Entering a Stay of Proceedings for All of the Appellants?
[112] A stay of proceedings has been characterized as the “ultimate remedy” (Tobiass, at para. 86) because of its finality:It is ultimate in the sense that it is final. Charges that are stayed may never be prosecuted; an alleged victim will never get his or her day in court; society will never have the matter resolved by a trier of fact.
(Regan, at para. 53) [113] For these reasons, and as I noted above, this drastic remedy will be granted only where the situation meets the high threshold of being one of the “clearest of cases” (O’Connor, at para. 69). This requires the following three conditions to be met:(1) there must be prejudice to the accused’s right to a fair trial or to the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54; Babos, at para. 32);
(2) there must be no alternative remedy capable of redressing the prejudice (Regan, at para. 54; Babos, at para. 32);
(3) where there is still uncertainty over whether a stay of proceedings is warranted after steps 1 and 2, the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” (Regan, at para. 57; Babos, at para. 32). [114] These conditions are cumulative, and none of them is optional. With respect, I am of the view that the Superior Court judge failed to ensure that the second condition was met in this case. . R. v. G.B.
In R. v. G.B. (Ont CA, 2023) the Court of Appeal considered a 'stay' as a remedy for alleged disclosure breaches:[20] The applicant’s second ground of appeal is that the trial judge erred in dismissing his request for a stay of the charges against him based on what he argued were disclosure failures of the Crown.
[21] The trial judge found that the Crown’s disclosure had not in every respect been timely and complete − rather, he termed it “sub-optimal”. But he found that prosecutorial misconduct had not been made out, and that the applicant had not been deprived of a fair trial or opportunity to make full answer and defence, because, for example, the late disclosure was still in time for use in cross-examination or was of little probative value.
[22] A stay is a remedy of last resort, to be granted only in the “clearest of cases” when no other remedy can address the harm: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at paras. 30-31 and 36-40. The trial judge’s determination that no such harm was present here and thus to refuse a stay is entitled to deference on appeal: R. v. Graham, 2020 ONCA 692, at para. 18.
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