What is the legal test for a motion to stay a motion for a new trial?
Canada (Federal), Canada
The following excerpt is from R. v. Rahey, [1987] 1 SCR 588, 1987 CanLII 52 (SCC):
48. Now to turn to the remedy. Again in Mills, I have explained why a stay is the minimal remedy. If an accused has the constitutional right to be tried within a reasonable time, he has the right not to be tried beyond that point in time, and no court has jurisdiction to try him or order that he be tried in violation of that right. After the passage of an unreasonable period of time, no trial, not even the fairest possible trial, is permissible. To allow a trial to proceed after such a finding would be to participate in a further violation of the Charter. In Barker v. Wingo, supra, Powell J. wrote, at p. 522: The amorphous quality of the right also leads to the unsatisfactorily severe remedy of dismissal of the indictment when the right has been deprived. This is indeed a serious consequence because it means that a defendant who may be guilty of a serious crime will go free, without having been tried. Such a remedy is more serious than an exclusionary rule or a reversal for a new trial, but it is the only possible remedy.
49. Burger C.J. later wrote in Strunk v. United States, 412 U.S. 434 (1973), at p. 440, "In light of the policies which underlie the right to a speedy trial, dismissal must remain, as [Powell J. in] Barker noted, `the only possible remedy' ". The same is true, in my view, under s. 11(b), in that a trial cannot be allowed to proceed subsequent to a finding that a violation has occurred.
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