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Criminal - Stays (2). R. v. I.L.
In R. v. I.L. (Ont CA, 2026) the Ontario Court of Appeal considers stays of proceedings, here in a criminal context:1. The application judge did not err in declining to stay the proceedings
[5] With respect to the s. 7 Charter breach, there is no question that the conduct of Crown counsel (not appellate counsel) was egregious. Crown counsel knew of and failed to disclose evidence that undermined the basis for the bail review application. Nevertheless, he continued to seek to review certain conditions of the appellant’s interim release order affecting his parenting rights with respect to his two children. These children were not involved with or affected by the charges involving the complainant.
[6] The appellant does not argue that the Crown’s conduct in this case affected trial fairness. Rather, he submits that the Crown’s conduct falls within the “residual” category of cases warranting a stay of proceedings, as that conduct “risks undermining the integrity of the justice process”: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31. He argues that the application judge erred in failing to recognize and give effect to the egregiousness of the Crown’s conduct for which a stay of proceedings was the only appropriate remedy.
[7] It is well established that a stay of proceedings is “the most drastic remedy a criminal court can order” and will be granted only on “rare occasions”, in the “clearest of cases”: Babos, at paras. 30-31. Moreover, cases warranting a stay of proceedings within the residual category will be exceptional and very rare: Babos, at para. 44. It is only where “the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases” that a stay of proceedings will be warranted: Babos, at para. 44, citing R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659, at p. 1667.
[8] In Babos, at para. 32, Moldaver J. set out the three-part test to be followed in determining whether a stay of proceedings should be ordered:(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. [Citations omitted.]
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