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www.1law1.com 2012/08/28 Article
"Judge stays criminal charge for abuse of process"


By Kenneth W. Golish

Justice Lucy C. Glenn of the Ontario Court of Justice stayed a charge of mischief in a Chatham court today.  The defendant was charged with that offence in March, 2010, but also charged at the same with assaulting a peace officer and making harassing phone calls.  The actual trial of all those charges concluded in August 2011.  In her 2011 reasons, discussed in the news item August 22, 2011: Judge dismisses assault charge, the defendant was acquitted of the other two charges, but found guilty of mischief to property.  However, defence counsel Kenneth Golish immediately asked for a stay of the mischief charge on the grounds of police and prosecutorial misconduct.

In her reasons, the judge granted the stay because she found the police had abused the rights of the defendant in two principle ways, first, because police officers had unlawfully assaulted and hurt the defendant in the process of unlawfully arresting him and secondly, for keeping the defendant in custody longer than was necessary--at least three days before he was released by a court--when he should have never been formally detained in the first place.  Judge Glenn decided that the only way to remedy the abuse was to grant the defendant a stay.  A stay has basically the same status as an outright aquittal.


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