The test for a Mosely order (conditional stay of criminal proceedings until the Crown pays costs thrown away through its fault) is unfairness in all the circumstances, not 'exceptional' or 'rare' circumstances. The discretion is broad and can arise in a myriad of circumstances. However, the unfairness must be of a degree that justifies stopping the prosecution — it is not sufficient merely to show fault by the Crown and some costs thrown away; there must be evidence that the costs impact the accused's ability to fund the trial to a degree constituting unfairness. A Mosely order may be made even if the subsequent trial will not necessarily be unfair.
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