How It Works

Every Canadian is guaranteed a set of fundamental rights under the Canadian Charter of Rights and Freedoms. If any of these rights are violated, Section 24(1) allows you to apply to the court for a remedy. The court can grant you an adjournment, award you costs or stay your charge. It is up to the court to decide what remedy is appropriate.

You will argue that the only appropriate remedy is to stay the charge against you.

What Rights Can Be Violated?

Canadians have many rights guaranteed under the Charter. The following are typical sections that are violated for provincial offence cases and result in applications for stays:

  • Section 7 - the right to disclosure to help you prepare your defence and answer to the charge is a principle of fundamental justice. You must have disclosure of all the evidence before the trial. If you don't get it, you can apply for a stay.
  • Section 11a - the right to be informed of the offence. A good disclosure request will ask for an explanation and clarification of the charge. If you don't get it, request a stay!
  • Section 11b - the right to be tried within a reasonable time. This is the most common basis for a stay and is explained in further detail in this section.
  • Section 11d - evidence that is obtained unfairly or violates your rights cannot be used against you. For example, roadside breathalyzer tests cannot be used to convict you of drunk driving. They can be used to justify an "approved instrument test" which can be used to convict you. But if there was no lawful reason to demand the breathalyzer test in the first place, then the case against you falls apart.

There are other sections as well that may be applicable to your situation like sections 14 and 15. For criminal cases, sections 8, 9 and 10b may also be relevant.

The Argument

The point of the stay request is that you are claiming your constitutional rights have been violated. The only way to rectify this wrong is to stop all proceedings against you because continuing will just make the violation worse.

You must have a good argument to show that your rights were violated. You must explain, when, where and how they were violated. Then you must explain why the only way to correct this wrong is to stop. That means no adjournments, no court orders to correct the wrong, only stopping the charge in its tracks will do.

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