There is no statutory authority for the Crown’s ability to withdraw a charge(s). The power to do so derives from the common law. Although the Code is silent as to withdrawal of charges, it is an established practice that the prosecutor may withdraw charges without the approval of the court, particularly prior to the accused entering a plea. It appears, however, that although the prosecutor may withdraw a charge as of right any time prior to plea, once evidence has been tendered the withdrawal of the charge requires leave of the court. In the absence of a finding of abuse or flagrant impropriety, once the prosecutor withdraws or stays a charge the court is without any jurisdiction to deal with a Charter application. At this stage, the only possible remedy for an accused is to commence a civil action for remedy.
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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