In R v Babos 2014, the Supreme Court of Canada decided and confirmed that a stay of proceedings for an abuse of process will only be warranted in the clearest of cases. Two types of state conduct may warrant a stay. The first is conduct that compromises the fairness of an accused’s trial (the “main” category). The second is conduct that does not threaten trial fairness but risks undermining the integrity of the judicial process (the “residual” category). 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.
The implications of the decision are discussed in this week's featured Robson Crim MLJ paper by Jeffery Couse:
"The abuse of process doctrine allows courts to stay criminal proceedings where state misconduct compromises trial fairness or causes ongoing prejudice to the integrity of the justice system (the “residual category”). The Supreme Court revisited the residual category in the 2014 case R v Babos. In Babos, the Supreme Court provided a three-stage test for determining whether an abuse of process in the residual category warrants a stay of proceedings.
[In a recent paper], I critically examined Babos and its progeny. Notwithstanding the Supreme Court’s insistence that the focus of the residual category is societal, all three stages of the test remain disconcertingly preoccupied with the circumstances of the individual accused.
Courts’ reluctance to give undeserving accused the “jackpot” remedy of a stay has prevented the court from dissociating itself from state misconduct. Instead, courts have imposed remedies which inappropriately redress wrongs done to the accused.
[I suggest] four ways for courts to better advance the societal aim of the residual category. First, a cumulative approach should be taken to multiple instances of state misconduct rather than an individualistic one. Second, courts ought to canvass creative remedies in considering whether an alternative remedy can adequately dissociate the justice system from the misconduct. Third, courts should avoid using terms like “unwarranted windfall” and “jackpot” to describe the remedy of a stay of proceedings. Finally, courts need not be so hesitant to stay proceedings. Properly applied, the abuse of process analysis carries minimal risk of 'unwarranted windfalls'.”
Excerpted from: Jeffery Couse. “Jackpot:” the Hang-Up Holding back the Residual Category of Abuse of Process from the Robson Crim MLJ 40(3) 2017.
R. v. Babos, 2014 SCC 16,  1 S.C.R. 309
Jeffery Couse. “Jackpot:” the Hang-Up Holding back the Residual Category of Abuse of Process from the Robson Crim MLJ 40(3) 2017.