Case Study: Stay of Proceedings – Possession of a Controlled Substance
Mr. P.’s case is a frustrating one. It showcases the way a criminal charge can drag on, consuming the accused’s life for months, all while the accused is still presumed innocent. It does, however, demonstrate how your Charter protected rights can ensure that when the Crown Attorney allows a charge to drag on without trial for too long the Court can stay the proceedings and allow you to go free.
Mr. P. was pulled over by police who had been monitoring activity they suspected was drug trafficking. During the stop they searched Mr. P. and found what they believed was crack cocaine. He wasted little time obtaining a defence team after his charges were laid.
We prepared his case as much as we could but lacked a key piece of the puzzle: disclosure. The Criminal Code of Canada entitles an accused to make a full defence against any charges laid. In R. v. Stinchcombe the Supreme Court of Canada unanimously held that this entitlement includes the right of an accused to receive copies of any evidence that might reasonably be used against them in court, so that they can prepare their full defence. The Crown was obligated to provide us with all the evidence that could reasonably be used against Mr. P. upon our request.
We requested disclosure shortly after being retained. For months we appeared in court on Mr. P.’s behalf to adjourn while we persisted in requesting disclosure from the Crown’s office. Contacting the Crown’s office on Mr. P.’s behalf became a routine task for our articling student, which consistently bore no results.
No one should have to spend an exhausting amount of time in limbo, awaiting trial while the Crown drags its feet. Section 11(b) of the Charter of Rights and Freedoms guarantees the right to be tried within a reasonable time. During our struggle to obtain the disclosure necessary to properly begin building Mr. P.’s defence it became clear that his s.11(b) rights were being violated, and our goal would be to have the charge stayed so that he could get on with his life, certain that he was not going to be convicted.
Without disclosure we could not prepare a defence strategy, so much of our time working with Mr. P. was spent attempting to get the disclosure. After over a year of waiting our strategy shifted: we sought a motion for a stay of proceedings.
The constant adjourning of the case was the fault of the State, not Mr. P.: The Crown and police had failed to provide disclosure within a reasonable time, and in doing so violated Mr. P.’s s.11(b) rights. We requested that, on these grounds, the charges against Mr. P. be stayed.
After discussing the length of time we had been waiting for disclosure with the Crown, they agreed to stay the proceedings against Mr. P. After over a year of waiting for his case to proceed, he was a free man. A “stay” is like a win!