Dalhousie Law Journal


Connie Sun


Discretionary power, stay of criminal proceedings


The power of the attorney general to stay criminal proceedings is rarely discussed in most areas of Canada. However, in British Columbia, and particularly in the city of Vancouver, periodically letters appear in the local press referring to "subversion of the judicial process"' and irate judges attack prosecutorial procedures as "strange - sometimes sinister - manoeuvres". 2 In all cases the weapon used to effect the alleged injustice is identified as a "stay of proceedings". Such seemingly defamatory statements might prompt the uninformed to inquire into the use and alleged abuse of "stays". This paper, the result of such an inquiry, is offered in the nature and spirit of a preliminary investigation into the use of the attorney general's discretionary power to stay proceedings in criminal matters. The approach is to examine the historical foundation of the power, its present use, and the basis for recent allegations of abuse. Much of the study deals with "when" and "by whom" a stay can be entered. It is postulated that current uses of stays in certain Canadian jurisdictions constitute misuse of a statutory power because an attorney general cannot legally delegate discretion to implement stays. Probable illegality also exists in the use of stays before an indictment has been properly "found". These factors are central to an apparently illicit shift which has occurred in the use of stays in western Canada. The consideration of the need to stay a criminal charge in light of exceptional public policy factors has been supplanted by a consideration of the probable outcome of due process. The necessity to reverse this trend is implicit in the arbitrary nature of the power and its potential for abuse. It is suggested that the exercise of the power to stay proceedings be universally restricted to the person of the attorney general or subjected to such control as would make its abuse unlikely.

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