A prosecution may be stayed as an abuse of process where unexplained delay of more than 20 years, for which the prosecution is entirely responsible, has resulted in the death of witnesses, loss of documentary evidence, and the prosecution case is critically dependent on witnesses who gave prior inconsistent statements. The majority held that admissions by the Crown and judicial warnings to the jury cannot always adequately cure the prejudice caused by such delay. Fitzgerald P articulated a principle that a prosecution should be stayed if delay or other fault for which the prosecution is responsible involves a significant risk of the conviction of an innocent person. The question of how abuse of process principles apply to prosecutions based on recovered memories was expressly left open.
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