The Authority of the Attorney General to Stay Proceedings

The right and duty of the Attorney‑General -- as chief law officer of the Crown -- to supervise criminal proceedings (both indictable and summary) is a fundamental part of our criminal justice system.


Unlike the authority to withdraw charges, the authority of the Attorney General or an instructed agent to direct entry of a stay of proceedings is statutory.  It is found at section 579 of the Criminal Code.

There is no statutory power in a court to stay proceedings.  A court’s ability to stay an information or charge is found within the common law (a subject which I will leave to another day). 

The Ability to Stay “Proceedings”

While the Attorney General along with its counsel has the authority to direct that proceedings be stayed, the Criminal Code provides no definition of the term “proceedings”. 

It is well-settled, however, that criminal proceedings are instituted or commenced by the laying or receipt of an information.

R. v. McHale,2010 ONCA 361 (CanLII), at para. 43, 70. 

Section 579(1) permits the direction to enter a stay to be given “at any time after any proceedings in relation to an accused…are commenced”. This permits the Attorney General to enter a stay of proceedings on an information laid before a justice prior to determination by the justice as to whether or not to issue process.

See Re Dowson and the Queen, 1981 CanLII 87 (ON CA), 62 C.C.C. (2d) 286.

This differs from the Crown’s ability to withdraw an information or charge, which commences when the criminal prosecution begins, the point at which process is issued.

The entry of a stay is a statutory administrative discretion given to the Attorney-General, and, if exercised, its direction is to the Clerk of the Court as such and is outside the control of the judge. 

R. v. Smith, 1992 CanLII 325 (BC CA), at para 22;

Regina v. Beaudry, [1967] 1 C.C.C 272 (BCCA).

The Process

To implement the stay authority, the Attorney General or instructed agent must direct the clerk or other proper officer of the court to make an entry on the court record, for example, the information or indictment, that proceedings are stayed by the direction of the Attorney General or instructed agent. The entry is to be made on the record forthwith.  The entry has the effect of staying proceedings and vacating any recognizances. 

Effect of a Stay

When a stay has been entered, the Crown can continue with the proceedings without laying a new information by giving notice of recommencement within one year after the stay has been entered. Thus, for that period for time, entering a stay of proceedings has the effect merely of suspending the proceedings.

If the proceedings are not recommenced within this time, the proceedings are deemed never to have been commenced.

Section 579(2), Criminal Code.

When the Attorney General exercises its right to stay proceedings against an accused, there is no cause or proceeding in the courts against the accused, and hence no relief to be granted by the court.  The judge becomes functus with respect to the proceedings and has no jurisdiction to continue further in the matter.  

R. v. Fosseneuve, 1983 CanLII 2363 (SK QB), at para. 8;

R. v. Smith, 1992 CanLII 325 (BC CA), at para 25.



CRIMINAL CODE.

Attorney General may direct stay

579 (1) The Attorney General or counsel instructed by him 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 his direction, and such entry shall be made forthwith thereafter, whereupon the proceedings shall be stayed accordingly and any recognizance relating to the proceedings is vacated.

Recommencement of proceedings

(2) Proceedings stayed in accordance with subsection (1) may be recommenced, without laying a new information or preferring a new indictment, as the case may be, by the Attorney General or counsel instructed by him for that purpose giving notice of the recommencement to the clerk of the court in which the stay of the proceedings was entered, but where no such notice is given 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.



Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca

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