Assessing the Grounds: Stay of Proceedings vs. Charge Withdrawals in BC

Crown Counsels are prosecutors who review police reports submitted to them by police officers to determine whether the charges should be approved for a prosecution. The measure they use to make this determination is called “The Charge Approval Standard.” The charge approval standard consists of two prongs: the evidentiary test and the public interest test.

The Evidentiary Test

A prosecutor must be convinced that there is enough evidence for there to be a substantial likelihood of conviction. This is a high standard and means that the Crown should not charge people merely because it is likely they are guilty. A substantial likelihood of conviction means that there must be a seriously realistic prospect that the Crown can prove the guilt of the accused beyond a reasonable doubt. Some Crowns tend to lose sight of this sometimes.

Prosecutors must evaluate:

• The degree of importance to which the evidence relates.
• The probability of the evidence being deemed inadmissible by the court.
• Whether there are indicators to suspect the reliability and accuracy of the evidence.
• Whether there are reasons to doubt the believability of the evidence.

The Public Interest Test

Once each evaluated charge meets the demands of the evidential test, prosecutors must proceed and assess whether laying a charge is in the public interest. Some considerations for this test include:

• The seriousness of the alleged offence.
• The degree of guilt regarding the suspect.
• The magnitude of the circumstances and harm caused to a victim.
• Was the alleged offender under the age of 18?
• Does the cost of prosecution disproportionately outweigh the probable outcome and penalty?
• Do information sources need protecting?
• The level to which the offence impacts the community.

The Crown is required to continue to assess the case with these two tests in mind. This means that even if a charge has been laid, if new developments in the case arise during the litigation that suggest that the evidence no longer supports a substantial likelihood of conviction or that the public interest in a prosecution no longer exists, the Crown is required to terminate the prosecution.

Withdrawals vs. Stays of Proceedings

There are two ways that a prosecutor can terminate a prosecution that has already begun. One is to stay the proceedings pursuant to section 579 of the Criminal Code. The other is to withdraw the charge. There are differences between the two.

A stay of proceeding directs a court clerk to stop the trial proceedings. When proceedings are stayed, the prosecutor can restart the proceedings within a year. This is almost never done unless some new evidence comes to light that significantly increases the prosecutor’s chance of securing a conviction.

Prosecutors in BC almost always stay the proceedings instead of withdrawing the charges as a matter of policy even if they have no interest in ever restarting the case against the accused. Withdrawing the charges is rare in BC although it is the preferred method of terminating a prosecution in other provinces.

The significant difference between a withdrawal and a stay of proceedings is that some foreign countries including the USA do not recognize a stay of proceedings in law. This means that many people who have received a stay of proceedings because the Crown decided they did not have enough evidence against them to continue to proceed with the case will not be permitted to enter the USA because the USA does not equate a stay with an acquittal.

They do not see a person who received a stay as being found innocent. This can cause significant prejudice to a person in the future because they will have reduced ability to travel even though they were never found guilty of anything.

If you have been charged with a criminal offence in BC and the Crown is talking about a stay of proceedings, it is worth understanding exactly what that means for your future before you agree to anything. Speak with an experienced criminal defence lawyer early to protect your record and your travel.