Crown appeal from stay of proceedings entered in relation to a manslaughter conviction. Stay entered on the basis that the accused’s physical and mental illness precluded her from making full answer, and from having a fair trial. Accused suffered from terminal cancer.

Held: Appeal allowed, stay lifted.

Correct test is that the accused must establish on a balance of probabilities that “her mental or physical health prevents her from adequately defending herself as a result of not being able to (i) understand the nature or object of the proceedings … or (ii) adequately communicate with her counsel, or (iii) testify when necessary, or the trial process itself would seriously imperil her health.” Test not met. O’Ferrall, JA dissented.

A. Hepner, Defence Counsel