We found a match
Your institution may have access to this item. Find your institution then sign in to continue.
- Title
"Jackpot:" the Hang-Up Holding back the Residual Category of Abuse of Process.
- Authors
COUSE, JEFFERY
- Abstract
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. This article critically examines 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. This paper suggests 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."
- Subjects
CANADA; PROCESS (Law); CRIMINAL procedure; CRIMINAL justice system
- Publication
Manitoba Law Journal, 2017, Vol 40, p165
- ISSN
0076-3861
- Publication type
Article
- DOI
10.29173/mlj993