A Criminal Defence Lawyer Explains How To Get Your Charges Withdrawn Or Stayed

If you have been charged with a criminal offence in Canada

, you may be wondering what the options are for getting rid of your charges. Obviously, you can make a plea or have a trial. However, in some cases, there are other options such as having your charges withdrawn by the crown attorney or stayed. This article explains what those two terms mean.

When can the crown withdraw a charge?

The crown attorney has the right to withdraw any criminal charge before an accused person enters a plea in open court.

If you have already entered a plea, the crown attorney can still withdraw a charge, but the court must also agree that withdrawing the charge is appropriate.

If the crown tries to relay the charge after the charge has been withdrawn, the court may intervene to ensure there is no abuse of process.

Any attempt to relay a criminal charge after a withdrawal by the crown attorney should be discussed with your defence lawyer because any decision by the crown to prosecute after a charge was withdrawn may require a legal application to be brought before the court.

What about a stay of the charges? The crown attorney may also stay the proceedings as of right at any time before a final judgment is rendered. A stay of proceedings stops the prosecution proceedings immediately. The court has no power to intervene to require the continuation of the prosecution. Once a stay of proceedings is entered, the accused can also automatically be released from detention.

A stay of proceedings is an excellent outcome for the accused person. However the crown does have the power to recommence the prosecution after a stay of proceedings has been entered. This is why you should discuss with your criminal defence lawyer whether or not it is possible to obtain a withdrawal of charges rather than a stay of proceedings.

Sometimes, an experienced defence lawyer can persuade the crown to agree to withdraw the charges rather than entering a stay of proceedings.

How is either a stay or a withdrawal achieved? In many cases, these excellent outomes ocur because your criminal defence lawyer has negotiated with the crown attorney. Under Canadian law, the Crown must not proceed with the case if there is "no reasonable prosect" succeeding at trial. In the right case, an experienced criminal defence lawyer can demonstrate to the crown attorney that the crown's case is doomed and should not continue.

by: Brenda Hollingsworth and Richard Auger

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