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THE ONTARIO COURT OF APPEAL HOLDS THAT A STAY OF PROCEEDINGS IS THE ONLY AVAILABLE REMEDY FOR A BREACH OF SECTION 11(B) OF THE CHARTER

In R. v. Charity, 2022 ONCA 226, March 21, 2022, the accused was convicted of the offence of fraud.  He appealed from conviction, arguing in part, that the charges should have been stayed based upon a breach of section 11(b) of the Charter having occurred.  In response, the Crown argued that if a breach of section 11(b) occurred, the Court of Appeal should revisit the holding that a stay is the only remedy available. 

The appeal was allowed and a stay of proceedings entered.  The Court of Appeal held that a breach of section 11(b) had occurred and that a stay was the only remedy available.

In rejecting the Crown’s argument, the Court of appeal concluded that “the principle of stare decisis…precludes this court from acceding to the Crown’s request to change the established remedy of a stay for a s. 11(b) breach… While Jordan re-formulated the test for determining whether there was unreasonable delay, the underlying principles and the imperative to staunchly protect s. 11(b) rights remained the same. Although Jordan’s new framework was “a departure from the law that was applied to s. 11(b) applications in the past” and “a significant shift from past practice”, on the facts before the court, the re-formulated test does not make a stay of proceedings any less appropriate of a remedy for unreasonable delay, nor does it re-open the question of what an appropriate remedy would be” (at paragraphs 36 and 40).