Method 1 - The Full Monty

Method 1 is the filing method everybody knows and expects. This method files with the court the documents required under section 109. It requires a lot of leg work and a great deal of waiting at the court house for your turn at the clerk's counter.

Many people chose this method as it offers the least hassle at trial. The justice will reach for the paperwork you are about to file, will see that it is in order and then ask you to state your arguments why you should be granted a stay.

With Method 2 you will spend a considerable amount of time convincing the justice that you did everything correctly before you even get to state your arguments.

Neither method will reduce the aggravation. Method 1 requires a separate day just to file the paperwork which can mean an additional loss of income if you have to take time off work. The benefit of Method 2 is that you don't use a whole day filing documents but you will pay for it during your trial.

Which documents did you use?

Typically most people use the Form 4F and an affidavit of service to file a stay application. If you also created a factum, then include that as well.

If you are using a second affidavit to affirm the facts of your case, then the procedure is a little more complicated and is explained at the bottom of this page.

Part 1: Serve the Attorneys General

The first step is to give the Attorney General of Canada and the Attorney General of Ontario a completed copy of the Form 4F and factum if you used one.

You can fax, mail or hand deliver the documents to them. Keep the fax receipt as proof of service.

If you mail the documents, you will not have a receipt as proof that you sent it. You will have to complete the "service by mail" section of the affidavit of service.

Make sure you add an additional seven days for Canada Post to deliver the documents. The seven days does not include the day you mailed it. You should also note that it may take a day for Canada Post to postmark your stamp.

For example if postal pickup is 11 a.m. and you put the document in the mail at noon, it will not be picked up until the following day and may not be processed (cancel the stamp) until the day after that. That means an additional three days on top of the seven you are required to give Canada Post. To be safe, leave as much time as possible.

If you decide to hand deliver the documents, bring an extra three copies (one for you, the court and the prosecutor). They will stamp all of them for you. You can then file a stamped copy with the court as proof of service instead of an affidavit.

You should make sure that the clerk uses the right stamp. There are two kinds. On the left in the image below is the first kind of stamp. It is a general "Received" stamp that is used almost everywhere. This is the wrong stamp to use but many clerks will reach for it anyway.

The second kind of stamp, on the right in the image above, is a "Service" stamp which the clerk must sign. You want the signature as proof that you served them. When you hand deliver your documents, ask the clerk to make sure she uses "the stamp with the signature" or the "proof of service stamp".

Part 2: Serve the Prosecutor

Your next step is to serve the prosecutor's office with a copy of the completed Form 4F and factum if you used one. Typically the prosecutor's office is in the same building as the court house. The one exception is downtown in the City of Toronto (see below).

Like service to the attorneys general, you can mail, fax or hand deliver the copy. If you hand delivered copies to the attorneys general you will have three stamped copies to give to the prosecutor. They will keep one copy and add their stamp to the other two copies (one for you and one for the court).

The stamp is proof of service, that is, proof that you gave everyone a copy.

If you are not hand delivering, keep the fax receipt or complete the "service by mail" section of the affidavit of service as proof you provided everyone with a copy.

Part 3: Serve the Court

Now the fun begins. Typically most people will hand deliver to the prosecutor's office as it is in the same building as the court house (except in downtown Toronto). In busy jurisdictions, as you enter the building and before you head to the prosecutor's office, go to the court clerk's area and take a number (if they have this system) to reserve your place in line.

You're going to be waiting awhile so get the number early. Don't worry, they will not have called your number while you are in the prosecutor's office. If they did, then the line up isn't very long and it won't be a big deal to take another number.

"11(b)"

When it's your turn at the court clerk's window, start by telling them you are "filing an 11(b)". It doesn't matter if you are filing based on an 11(b) Charter infringement. Just say you are.

Do not state you are filing a "Charter application", a "Form 4F", a "stay application" or a "notice of constitutional question". Do not describe what you are doing. If you do, you will receive a blank stare and will be told that they don't handle that there. The magic words are "11(b)" and that will open the door. Any other description will slam the door in your face. (You have already been warned about the level of training of court clerks!)

Hand the clerk your documents, the completed Form 4F and factum if you used one. If you have fax receipts, provide the clerk with copies of them.

Commissioner of Oaths

If you are filing an affidavit of service instead of fax receipts, tell the clerk you want to swear the affidavit. If the clerk you are dealing with is not a commissioner for taking oaths, he will find one for you. It is very easy and you will not have to pay a notary fee.

Once you are in front of one who can swear your oath, present picture identification like your driver's licence to prove you are who you claim to be. Raise your right hand and state your name. The clerk will ask you if the information contained in the affidavit is true. Say "yes". Then sign the affidavit in front of the clerk. She will then sign it, stamp it and keep it along with the other documents.

Make sure to bring an extra copy of all the documents that you will keep to use at your trial. Have the clerk stamp them. This way you have a record of filing everything with the clerk of the court.

You can also swear a second affidavit in front of her which you keep for your records.

That's it. You have finished filing your documents. The paperwork you gave the clerk will be inserted into the court file which the justice will look at during your trial.

Affidavits Affirming Facts

If you are using an affidavit to affirm facts contained in your stay application, you must swear the affidavit before a notary or commission for taking oaths. You can do this before your visit to the court house or you can do it at the court house and avoid the notary fee.

If you are doing it at the court house, you will have to start at the court clerk's window, affirm the affidavit, serve the prosecutor then return to the clerk to file the documents which now include the prosecutor's stamp.

Some jurisdictions will incorrectly make you go to the prosecutor's office first, then to the court clerk. If you do that, the prosecutor will receive an unsigned affidavit.

Instead check if the clerk at the prosecutor's office is a commissioner of oaths. You will be able to sign the affidavit in front of her before filing the documents with her. If you can't do this, don't give them the affidavit. Leave just the factum and the Form 4F. Have them stamp the other copies. Then go to the court clerk and swear the oath and sign the affidavit in front of her. Do this two more times so you have a total of three signed affidavits. File one with the court clerk. Then go back to the prosecutor's office and give them one of the remaining two signed affidavits to add to the documents you already gave them. The third signed affidavit is for you to keep for your records.

Exception - Downtown Toronto

While this may seem complicated it is even worse in downtown Toronto. While the other crowded Toronto court offices in the boroughs run fairly smoothly in the same building, the Kafkaesque procedures at Old City Hall are specifically designed to drive you toward insanity or suicide. The preferred outcome is actually suicidal insanity. You will have to summon all of your willpower, most of your medications, and the calm of a Buddhist Zen master to deal with a bureaucracy run amok.

This location has divided itself in two. You will first have to go to 137 Edward St. (2nd floor) to swear the affidavit before the clerk of the court. They will then make you go to Old City Hall (60 Queen St. West in the basement) to serve the prosecutor and obtain their stamp. Then you have to go back to Edward St. to file.

You can save one step by going to Old City Hall first and swearing the affidavit before a justice in room 159 on the first floor. You can then go to the basement to serve the prosecutor before going to Edward St. to file the paperwork.

First warning: the prosecutor's intake window in the basement of Old City Hall is particularly nasty. Sometimes they will refuse to stamp your documents simply because they do not understand the documents you are serving them.

Second warning: if your trial is at 70 Centre St. the prosecutor's intake is still 60 Queen St. West (basement). The prosecutor at your trial will deny receipt of your application. Clearly they have never heard of interoffice mail. The prosecutor may even try to argue that your application was delivered to the wrong address. This is completely untrue however expect the justice to give a great deal of credibility to what the prosecutor says. You will have to patiently point out to the court that your application was filed correctly.

Problems

If you have any problems with the court clerk when you try to file this material, don't get into an argument. Rather point out that the job of the clerk is to file the paperwork with the court. It will be up to the justice to decide if the paperwork is in order.