Supreme Court Sets High Bar for Prosecutorial Abuse of Process: R v Babos
In R v Babos, 2014 SCC 16 [Babos], the issue was whether the Crown misconduct, in the form of intimidation and threats, was severe enough to warrant a stay of proceedings for the accused. A 6-1 majority of the Supreme Court of Canada (SCC) has held that prosecutorial misconduct or abuse of process must be particularly egregious to warrant a stay of proceedings when the criminal charges are serious. In this case, a prosecutor repeatedly threatening to have extra charges brought if the accused did not plead guilty to the charges as laid was not enough to meet the high threshold for abuse of process warranting a stay of proceedings, as it was not found to outweigh society’s interest in a trial.
Antal Babos and Sergio Piccirilli were charged in 2006 with numerous firearms offences, in addition to offences related to importation, production, and trafficking of methamphetamine. The charges were laid in Quebec following a major RCMP investigation in Project Cleopatra, which was targeting drug trafficking by members of the Kanesatake community to the Hell’s Angels bikers in Montreal and Trois Rivieres.
The accused argued that the provincial Crown attempted to intimidate them into forgoing their right to a trial by threatening them with extra charges if they did not plead guilty to the charges as laid. She also threatened to proceed under s. 577 of the Criminal Code (direct indictment), which would preclude the accused from having a preliminary inquiry. The comments of the original prosecutor (who was removed from the case for medical reasons two months before trial) were brought to the attention of the trial judge roughly six months into the trial, eighteen months after they were made (Babos, para 11).
At trial, the judge issued a stay of proceedings for both accused, agreeing that allowing the conduct would undermine public confidence in the administration of justice as the threats of the prosecutor and subsequent lack of remedial action by the Crown were particularly “shocking and outrageous” (comments reproduced in para 20), also stating that the comments in and of themselves were sufficient to warrant a stay of proceedings. The Quebec Court of Appeal disagreed, overruling the trial judge and ordering a new trial, acknowledging that a stay of proceedings is only to be granted in extreme cases.
SCC Ruling: The Test for Abuse of Process Warranting a Stay of Proceedings
It has been acknowledged that a stay of proceedings is “the most drastic remedy a criminal court can order” (para 30, citing R v Regan,  1 SCR 297), and the court has held that a stay will only be granted in the clearest of cases (citing R v O’Connor,  4 SCR 411, para 68). The legal test for whether a stay of proceedings is the appropriate remedy for abuse of process has three requirements (Babos, para 32):
(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 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 (1) and (2), the court must balance the interests of the accused and the societal interest in having the case heard on its merits.
This test applies to two categories of state conduct. First is the “main category,” which encompasses conduct that compromises the fairness of the accused’s trial. Second is a “residual category,” which includes conduct that does not affect trial fairness, but risks undermining the judicial process. The latter category was of interest in Babos. Effectively, this decision turns on whether the impugned state conduct was so egregious as to offend “society’s sense of fair play and decency,” while balancing against society’s interests in an accused being tried on the merits of the case against them.
In Canada (Minister of Citizenship and Immigration) v Tobiass,  3 SCR 391 [Tobiass], the court held that for a stay of proceedings to be issued in a “residual category” case such as Babos, where fairness is not an ongoing issue, the past misconduct must be sufficiently egregious to deem the trial offensive going forward (Tobiass, para 91). This is the first stage of the test above.
With respect to the second stage of the test, the Supreme Court of Canada (SCC) held that procedural remedies (e.g., ordering a new trial) are most likely to address prejudice to the accused when there are issues of ongoing fairness (Babos, para 39). However, for residual category cases, the court must look to whether there is a remedy to dissociate the justice system from the impugned state conduct – not to provide redress to the accused for past wrongs.
Finally, the third stage of the test is to balance the societal interests.It only applies when there is uncertainty with respect to whether a stay is appropriate after engaging the first two stages of the test (para 40). This is particularly important in residual category cases (paras 40-43).
The court made it clear that the Crown is well within its right to engage in legitimate plea bargaining practices, such as dropping certain charges in exchange for a guilty plea (para 59). It is also acceptable to add additional charges, should further evidence arise at a preliminary hearing to support the charges. However, in the present case, the Crown conduct was particularly egregious because it happened before sufficient disclosure was provided. Moreover, the language was downright threatening, including telling one accused that if he did not settle that he would be “hit by a train” (para 60). The conduct was admonished by the SCC as “reprehensible and unworthy of the dignity of her office” (para 61).
Despite the conduct, the majority of the SCC found that the trial judge failed to properly consider multiple factors when erroneously granting the stay of proceedings based on Crown abuse of process. Particularly, the threats were not properly assessed contextually (para 62). First, the threats were made more than a year before the trial began, and the accused took no action to address the conduct. Second, the Crown prosecutor who made the threats left the case months before the trial started. Finally, there is a need to balance the need for a stay of proceedings against society’s interest in a trial on the merits of the case.
For these reasons, a stay of proceedings was held not to be an appropriate remedy in this case. When balancing the seriousness of the Crown misconduct against the very serious nature of the charges, the SCC held that society’s interests were better protected by having a trial on the merits of the case.
Dissent and Conclusion
As the lone dissenter, Abella J. held that the majority set the bar too high with respect to abuse of process. She heavily emphasized the need for public confidence in the integrity of the justice system. It was her opinion that the passage of time as considered by the majority did not attenuate what she deemed “unpardonable conduct,” as it is not an appropriate remedy for the conduct (para 82). She was also not convinced that a balancing exercise was necessary in this case, questioning “against what does one balance that singularly egregious state conduct?” (para 84). Her concern is in what she describes effectively as a redundant double-balancing, as it is prerequisite to observe competing interests before concluding that the state conduct could not be condoned.
The majority took a very clear position in enumerating the test for abuse of process and setting the bar quite high for the residual category. However, Justice Abella’s concerns are very real, particularly in an increasingly punitive political climate. This decision also seems contrary to the recently increasing level of deference to the assessments of trial judges. One thing is clear, if state conduct is to reach the level of “injustice” warranting a stay of proceedings, then it must either be irreparably impacting the ongoing fairness of a trial or have been so remarkably egregious that there is no other logical result than a stay.