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PROCEDURE - Trials - Stay of proceedings

Tuesday, April 17, 2018 @ 8:46 AM  

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Appeals by the Crown from two separate orders staying charges against the accused, D'Allesandro and Dubensky. D'Allesandro was charged with possession of cocaine for the purpose of trafficking under an indictment. He was ordered detained prior to trial due to a prior failure to appear. On the day of his trial, D'Allesandro was in custody at the courthouse, but no sheriff was available to bring him to the courtroom. The trial judge was not prepared to conduct the trial in the absence of the accused and therefore entered a stay of proceedings. Dubensky was charged in an indictment with a drug offence and two weapon offences related to possession of bear spray. Dubensky was present in the courtroom when his case was called, but the trial judge was advised that there was insufficient sheriff staffing to conduct the three-day trial. The trial judge accordingly entered a stay of proceedings. The Crown appealed the two separate orders.

HELD: Appeals allowed. Neither stay was imposed to remedy a Charter infringement. In each case, the trial judge erred by acting on his own motion without hearing from the parties, and by failing to consider other ways to address the unavailability of a sheriff. Although the recurrent unavailability of sheriffs was a legitimate concern, the use of a stay of proceedings to address the issue was procedurally inappropriate and extreme. In each instance, the stay of proceedings was set aside and the matters were remitted for trial.

R. v. D'Allesandro, [2018] B.C.J. No. 567, British Columbia Court of Appeal, P.D. Lowry, S.D. Frankel and H. Groberman JJ.A., April 3, 2018. Digest No. TLD-April162008004