Bruce McMeekin Law

“Reprehensible” Crown Misconduct Not Enough to Stay a Criminal Prosecution as an Abuse of Process

Is a trial court justified in staying or dismissing a criminal prosecution as an abuse of process when faced with state misconduct? Yes, but only in the clearest of cases when no other remedy will suffice.

In R. v. Babos the accused were charged with serious firearm and drug offences. Before disclosure was complete, the Crown threatened to lay additional charges if the accused did not enter into a quick plea arrangement. At trial the presiding judge acceded to the defence motion that this threat constituted conduct so egregious that permitting the trial to proceed to its conclusion would undermine the integrity of the judicial system . He stayed the prosecution, effectively dismissing the charges before a trial on the merits could be concluded. The Quebec Court of Appeal set aside the stay and ordered a new trial. On appeal, the Supreme Court agreed that the prosecutorial misconduct was reprehensible but disagreed that a stay was justified because the threats and been made well before trial and the threatening Crown had been replaced prior to trial.

A stay of proceedings for an abuse of process is a Charter remedy available to a trial court in the “clearest of cases” when it is confronted with two categories of state misconduct: (1) conduct that compromises the fairness of an accused’s trial; and, (2) conduct that does not threaten trial fairness but risks undermining the integrity of the judicial process. The test for determining whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:  (1) there must be prejudice to the accused’s right to a fair trial or to the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome, (2) there must be no alternative remedy capable of redressing the prejudice, and (3) where there is still uncertainty over whether a stay is warranted after steps 1 and 2, the court must balance the interests in favour of granting a stay against the interest that society has in having a final decision on the merits.

In this case, the majority found that although the threats were reprehensible and unworthy of the dignity of the Crown’s office, the balancing process, including the seriousness of the charges, militated towards permitting the prosecution to be heard on its merits.

Here is the decision:2014scc16