The Documents

You must use a specific form to make a stay application. This form must be sent to the attorneys general of Ontario and Canada. As discussed in the last section, it's a good idea to give a copy to the municipal prosecutor as well.

There are also other documents you can submit that you may find helpful for your cause. You may find that using these documents, that is putting your argument in writing, may be easier than trying to make the argument orally in court. If you are easily flustered or nervous, a paper argument may be just the thing for you.

When you go to court, the justice and prosecutor will be expecting something in writing. You should learn what these documents are so that you understand what they are talking about.

This page will describe these documents and when to use them.

Let's look at the three documents you may need to request a stay:

• Form 4F
• a factum
• an affidavit

Form 4F

Form 4F (Source: Ontario Court Forms) otherwise known as the Notice of Constitutional Question is the absolute minimum you must use.

It is a very simple form that lets the (potentially) interested parties know that at your trial you will be making a motion to stay your charge. It is literally a note telling the prosecutor and the attorneys general of Ontario and Canada: "Hey I'm going to make a motion in court."

There is room to write out why you believe your rights have been infringed directly on the form. Here is an example form that has been completed.

If all your facts and arguments do not fit on the form then you will require a "factum". It is a larger document for more extensive arguments. If you are going to use a factum,simply complete the Form 4F and write, "The material facts giving rise to the constitutional question and the legal basis for the constitutional question are included in the applicant's factum attached."

Factums

A factum is a legal brief that states your arguments. A factum for a pre-trial motion will state the facts of how you and the prosecutor handled your case. You explain how your Charter rights were infringed by the prosecutor.

Factums can also contain arguments as to why you are innocent. However if you do that you risk confusing trial arguments with a pre-trial motion for a stay. You are advised not to use this opportunity to tell your side of the story about your charge. This is NOT about arguing your innocence but about how the prosecutor has committed a wrong with the handling of your case.

The general principles of writing a factum can be found here. A more advanced explanation of judges expectations when they are reading factums and some very good writing tips can be found here. Examples of factums can be found here.

Under Step3 you were encouraged to do research for case law similar to your charge on Canlii. This search should also produce some cases that used constitutional arguments. If you are still having trouble finding cases that match your situation, you can review the Supreme Court Charter Digest which examines each section of the Charter and highlights noteworthy cases that you can look at. It will also help you understand your rights under the Constitution.

Do not become overwhelmed by these resources. Remember to keep your arguments simple and easy to understand.

If you do refer to the case law or the Charter digest, include a copy of the document as an appendix to the factum. Justices hate looking up case law. They want everything conveniently provided to them. You do not have to provide copies of legislation, acts, or regulations, but if you do refer to a specific section, you may wish to include a quote of that section for convenient reference.

Affidavit

The third component to your application is an affidavit. An affidavit is a formal sworn statement of fact. You are literally taking an oath stating that the contents of the affidavit are, to the best of your knowledge, true. It is used to present evidence to the court.

For your stay application, there are two kinds of affidavits you may want to use.

The first is an affidavit of service. Basically after giving copies of your documents to the attorneys general and the prosecutor, you complete an affidavit swearing you actually gave them the documents. You submit this to the court as proof that everyone has a copy.

The affidavit is a little confusing to use. There is a separate section for every type of method you could possibly use to deliver the documents (in person, by mail, by fax, and so on). You only have to complete one section depending on how you gave them your documents. To help you understand it, here is one with explanations included.

However, if you deliver the documents by hand, they can affix their stamp on the court's copy. This stamp is all you need to prove you gave them a copy and you don't need to complete the affidavit of service.

The second kind of affidavit you could use contains key facts relevant to your case that you wish to submit in writing. The facts are presented without embellishment or opinion. This kind of affidavit can be used to assist your case on paper by presenting evidence or to affirm the factual contents of your stay application.

Here are some resources to help you understand this second type of affidavit:

• A general guide to preparing an affidavit (this example is from British Columbia).
• An example affidavit to get you started.
• A more complex affidavit example.

The affidavit must be signed in front of a notary, a lawyer or a commissioner of oaths. They all charge a nominal fee to do this. But you can avoid this fee and take the convenient route by completing it at the court house. Most of the clerks at the court house are commissioners of oaths and do it free of charge.