R. v. Nixon

R. v. Nixon
Collection
Supreme Court Judgments
Date
2011-06-24
Neutral citation
2011 SCC 34
Report
[2011] 2 SCR 566
Case number
33476
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
Alberta
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 33476
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566
Date: 20110624
Docket: 33476
Between:
Olga Maria Nixon
Appellant
and
Her Majesty The Queen
Respondent
- and -
Attorney General of Ontario, Attorney General of Manitoba,
Attorney General of British Columbia,
Criminal Trial Lawyers’ Association and
Criminal Lawyers’ Association (Ontario)
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 71)
Charron J. (McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Rothstein and Cromwell JJ. concurring)
R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566
Olga Maria Nixon Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Ontario,
Attorney General of Manitoba,
Attorney General of British Columbia,
Criminal Trial Lawyers’ Association and
Criminal Lawyers’ Association (Ontario) Interveners
Indexed as: R. v. Nixon
2011 SCC 34
File No.: 33476.
2010: December 15; 2011: June 24.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for alberta
Constitutional law — Charter of Rights — Right to life, liberty and security of person — Accused charged with dangerous driving causing death, dangerous driving causing bodily harm and parallel charges for impaired driving — Crown and accused entering into plea agreement — Crown subsequently repudiating plea agreement — Whether repudiation amounting to breach of accused’s s. 7 Charter rights — Canadian Charter of Rights and Freedoms, s. 7 .
Criminal law — Plea agreement — Repudiation — Accused charged with dangerous driving causing death, dangerous driving causing bodily harm and parallel charges for impaired driving — Crown and accused entering into plea agreement — Crown subsequently repudiating plea agreement — Whether act of repudiation matter of tactics or conduct before court or matter of prosecutorial discretion — Whether act of repudiation reviewable on grounds of abuse of process.
The accused drove her motor home through an intersection and struck another vehicle, killing a husband and wife and injuring their young son. She was charged with several Criminal Code offences, including dangerous driving causing death, dangerous driving causing bodily harm, and parallel charges for impaired driving. Counsel initially entered into a plea agreement according to which the accused would plead guilty to a charge of careless driving under the provincial Traffic Safety Act with a joint sentence recommendation for an $1,800 fine in return for which the Crown agreed to withdraw the Criminal Code charges. When the Acting Assistant Deputy Minister of the Criminal Justice Division of the Office of the Attorney General saw the proposed resolution, he initiated an inquiry which led him to conclude that Crown counsel’s assessment of the strength of the case was flawed. In his view, a plea to careless driving in the circumstances was contrary to the interests of justice and would bring the administration of justice into disrepute. Crown counsel was thus instructed to withdraw the plea agreement and to proceed to trial. In response, the accused brought a s. 7 Charter application alleging abuse of process and seeking a court direction requiring the Crown to complete the plea agreement. The application judge held that negotiations between counsel after charges are laid are matters of tactics or conduct which are subject to review by the court, and that the repudiation of the plea agreement, in this case, was not justified. He concluded that the accused’s s. 7 Charter right to security of the person had been breached and he directed the Crown to proceed with the agreement. The Court of Appeal allowed the Crown’s appeal, finding that the repudiation of a plea agreement is a matter of prosecutorial discretion not reviewable by the courts, subject to the doctrine of abuse of process.
Held: The appeal should be dismissed.
The crucial importance of the distinction between prosecutorial discretion reviewable only for abuse of process and matters of tactics or conduct before the court governed by the inherent jurisdiction of the criminal trial court to control its own process was fully canvassed and explained in Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372. Subject to the abuse of process doctrine, supervising one litigant’s decision-making process — rather than the conduct of litigants before the court — is beyond the legitimate reach of the court. The Crown’s decision in this case to resile from the plea agreement and to continue the prosecution clearly constituted an act of prosecutorial discretion subject to the principles set out in Krieger: it is only reviewable for abuse of process. Prosecutorial discretion is not spent with the decision to initiate the proceedings, nor does it terminate with a plea agreement. So long as the proceedings are ongoing, the Crown may be required to make further decisions about whether the prosecution should be continued, and if so, in respect of what charges.
There are two categories of abuse of process under s. 7 of the Charter : (1) prosecutorial conduct affecting the fairness of the trial; and (2) prosecutorial conduct that contravenes fundamental notions of justice and thus undermines the integrity of the judicial process. While s. 24(1) of the Charter allows for a wide range of remedies, this does not mean that abuse of process can be made out by demonstrating a lesser degree of harm, either to the accused’s fair trial interests or to the integrity of the justice system. Achieving the appropriate balance between societal and individual concerns defines the essential character of abuse of process.
The repudiation of a plea agreement may well constitute an abuse of process, either because it results in trial unfairness or meets the narrow residual category of abuse that undermines the integrity of the judicial process. The more difficult question in this appeal is how the initial exercise of prosecutorial discretion — Crown counsel’s offer to resolve the matter on the basis of a plea to a lesser charge — should figure in the analysis regarding abuse of process. A plea agreement should not be regarded as a contractual undertaking. Vitiating factors, such as mistake, misrepresentation or fraud, which usually inform a private party’s right to resile from a bargain, do not fully capture the public interest considerations which are at play. However, the analogy can usefully underscore the utmost importance of honouring the agreement. The situations in which the Crown can properly repudiate a plea agreement are, and must remain, very rare. Moreover, the reasonably defensible test applied by the application judge to Crown counsel’s decision to enter into a plea agreement is not the appropriate measure to determine whether there is an abuse of process. Indeed, it is the circumstances surrounding the repudiation of a plea agreement which should be reviewed to determine whether that decision amounts to an abuse of process. Reviewing for “reasonableness” a decision made in the exercise of prosecutorial discretion runs contrary to the constitutionally separate role of the Attorney General in the initiation and pursuit of criminal prosecutions as well as the principles set out in Krieger.
Given that acts of prosecutorial discretion are generally beyond the reach of the court, there is good reason to impose a threshold burden on the applicant who alleges abuse of process. A court should not embark on an inquiry into the reasons behind the exercise of prosecutorial discretion without a proper evidentiary foundation. However, evidence that a plea agreement has been entered into and subsequently reneged by the Crown meets the requisite threshold. Further, to the extent that the Crown is the only party who is privy to the information, the evidentiary burden shifts to the Crown to enlighten the court on the circumstances and reasons behind its decision to resile from the agreement. The ultimate burden of proving abuse of process, however, remains on the applicant.
In this case, the Crown’s repudiation conduct cannot be considered so unfair or oppressive to the accused, or so tainted by bad faith or improper motive, that to allow the Crown to now proceed on the dangerous driving Criminal Code charges would tarnish the integrity of the judicial system and thus constitute an abuse of process. Indeed, the Acting Assistant Deputy Minister, in good faith, determined that Crown counsel’s assessment of the strength of the evidence was erroneous and, on that basis, having regard to the seriousness of the offences, concluded that it would not be in the public interest to terminate the prosecution on the criminal charges. This can hardly be regarded as evidence of misconduct. Finally, the accused was returned to the position she was in at the conclusion of the preliminary hearing before the plea agreement was entered into and thus suffered no prejudice as a result of the repudiation.
Cases Cited
Applied: Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372; disapproved: R. v. M. (R.) (2006), 83 O.R. (3d) 349; referred to: R. v. Jewitt, [1985] 2 S.C.R. 128; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Keyowski, [1988] 1 S.C.R. 657; R. v. Conway, [1989] 1 S.C.R. 1659; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297; R. v. Pires, 2005 SCC 66, [2005] 3 S.C.R. 343.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 24(1) .
Criminal Code, R.S.C. 1985, c. C‑46 .
Traffic Safety Act, R.S.A. 2000, c. T‑6.
Authors Cited
Law Society of Alberta. Code of Professional Conduct, version No. 2009_V1, June 3, 2009 (online: http://www.lawsociety.ab.ca/files/regulations/Code.pdf).
Ontario. Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions. Toronto: The Committee, 1993.
APPEAL from a judgment of the Alberta Court of Appeal (Côté, Paperny and Slatter JJ.A.), 2009 ABCA 269, 8 Alta. L.R. (5th) 384, 464 A.R. 1, 246 C.C.C. (3d) 149, 195 C.R.R. (2d) 352, [2009] 10 W.W.R. 641, 82 M.V.R. (5th) 191, [2009] A.J. No. 871 (QL), 2009 CarswellAlta 1221, setting aside an order of Ayotte Prov. Ct. J., 2008 ABPC 20, 89 Alta. L.R. (4th) 156, 445 A.R. 111, 233 C.C.C. (3d) 539, [2008] 8 W.W.R. 740, 61 M.V.R. (5th) 287, [2008] A.J. No. 129 (QL), 2008 CarswellAlta 162, directing the Crown to honour the plea agreement. Appeal dismissed.
Marvin R. Bloos, Q.C., for the appellant.
Goran Tomljanovic, Q.C., and Christine Rideout, for the respondent.
Michal Fairburn and Frank Au, for the intervener the Attorney General of Ontario.
Ami Kotler, for the intervener the Attorney General of Manitoba.
M. Joyce DeWitt-Van Oosten, Q.C., for the intervener the Attorney General of British Columbia.
D’Arcy DePoe, for the intervener the Criminal Trial Lawyers’ Association.
Marie Henein, Matthew Gourlay and Lou Strezos, for the intervener the Criminal Lawyers’ Association (Ontario).
The judgment of the Court was delivered by
Charron J. —
1. Introduction
[1] The question on this appeal is whether the trial judge erred in concluding that the Crown’s repudiation of a plea agreement was an abuse of process in breach of the appellant’s rights under s. 7 of the Canadian Charter of Rights and Freedoms . More specifically, the courts below were divided on the appropriate standard against which to measure the repudiation conduct.
[2] The application judge held that the repudiation of a plea agreement is a matter of conduct or tactics which is subject to the usual control of the criminal trial court (2008 ABPC 20, 89 Alta. L.R. (4th) 156). In the case at bar, the repudiation of the plea agreement by the Assistant Deputy Minister of the Criminal Justice Division was not justified, as Crown counsel’s decision to enter into a plea agreement was “reasonably defensible”. Thus, he concluded that the repudiation of the plea agreement was an abuse of process in breach of the accused’s s. 7 security and liberty interests and directed the Crown to honour the agreement. The appellant subsequently pleaded guilty to a lesser offence and was acquitted on the more serious charges.
[3] The Alberta Court of Appeal overturned the application judge’s decision, holding that the repudiation of a plea agreement is a matter of prosecutorial discretion, reviewable only for abuse of process (2009 ABCA 269, 8 Alta. L.R. (5th) 384). It held that the application judge erred in testing Crown counsel’s decision against a “reasonably defensible” standard. Rather, he should have reviewed the circumstances surrounding the subsequent decision to repudiate. The relevant inquiry for abuse of process under s. 7 of the Charter is whether there is conduct which either causes prejudice to the accused by rendering the trial unfair, or affects the integrity of the justice system itself. In the absence of prejudice which renders the trial unfair, there must be proof of “prosecutorial misconduct, improper motive or bad faith in the approach, circumstances or ultimate decision to repudiate” (para. 49). Applying this test, the Court of Appeal found no evidence to support a finding of abuse of process in the circumstances of this case. The application judge’s order, the resulting plea and the acquittals were set aside, and a new trial was ordered.
[4] The appellant, Olga Maria Nixon, appeals to this Court.
[5] For the reasons that follow, I agree with the Court of Appeal that the application judge applied the incorrect test for abuse of process. I also agree that there is no basis for finding that the appellant’s s. 7 rights were breached in the circumstances of this case. I would dismiss the appeal.
2. The Proceedings Below
[6] The appellant, Ms. Nixon, was charged with several Criminal Code, R.S.C. 1985, c. C-46 , offences, including dangerous driving causing death, dangerous driving causing bodily harm, and parallel charges for impaired driving. The charges arose as a result of a motor vehicle accident which occurred on September 2, 2006. The Crown alleged that Ms. Nixon drove her motor home through an intersection without stopping and struck another vehicle, killing a husband and wife and injuring their young son. A roadside screening test was administered at the scene, followed by breath samples which resulted in readings of 200 mg of alcohol in 100 mL of blood. Expert extrapolation concluded that Ms. Nixon’s blood alcohol level would have been between 225 and 250 mg per 100 mL at the time of the accident.
[7] Given that Ms. Nixon elected trial by judge and jury, the matter proceeded to a preliminary inquiry on March 1, 2007. Crown counsel who had carriage of the case at the time had concerns about some of the evidence, in particular the admissibility of the breathalyzer results and the probative value of the eyewitness evidence that a motor home had been seen driving erratically some time before the accident. Based on his assessment, Crown counsel did not adduce the breath sample results at the preliminary hearing, although he specifically reserved the right to call this evidence at trial. He also informed the presiding judge that the Crown would not be seeking a committal on any charge other than the dangerous driving counts. Ms. Nixon consented to a committal order on the dangerous driving charges.
[8] Following the preliminary inquiry, additional discussions were held between counsel during the first weeks of May 2007 regarding a plea to a charge of careless driving under the Traffic Safety Act, R.S.A. 2000, c. T-6, with a joint sentence recommendation for a $1,800 fine. Counsel ultimately entered into a written agreement to that effect on May 22, and Ms. Nixon re-elected her mode of trial in anticipation of entering a guilty plea to the lesser charge on June 5.
[9] Before making the offer for a plea resolution, Crown counsel had discussed the matter in general terms with some of his colleagues in the Crown’s office, including his immediate supervisor who reluctantly agreed with the terms of the proposed agreement. Due to the sensitive nature of the case, a report was also prepared for senior officials in the justice department. When the Acting Assistant Deputy Minister (“ADM”) of the Criminal Justice Division of the office of the Attorney General saw the report and the proposed resolution scheduled to be perfected a few days later, he became concerned and initiated an inquiry. This in turn prompted an adjournment of the June 5 date to June 26. The defence was not informed of the reason for the adjournment at the time.
[10] The ADM obtained additional legal opinions about the merits of the Nixon prosecution and about the repudiation of plea agreements. Based on the results of this research, the ADM concluded that Crown counsel’s assessment of the strength of the case was flawed as he had failed to consider the totality of the evidence. In his view, a plea to careless driving in the circumstances was contrary to the interests of justice and would bring the administration of justice into disrepute. The ADM also concluded that Ms. Nixon could be restored without prejudice to the position she had been in prior to entering into the plea agreement. Thus, it was resolved that the decision by Crown counsel at the preliminary hearing not to proceed on the impaired driving counts would be maintained. However, the ADM instructed Crown counsel to withdraw the May 22 resolution agreement and to proceed to trial on the dangerous driving charges in accordance with the committal order.
[11] In response to this turn of events, Ms. Nixon brought an application under s. 7 of the Charter , alleging abuse of process and seeking a court direction requiring the Crown to complete the agreement. Ayotte Prov. Ct. J. of the Provincial Court of Alberta embarked on an inquiry into the matter, at the conclusion of which he reserved judgment. At the outset of his written reasons, the application judge noted that the Attorney General has the ultimate power to initiate, conduct and terminate prosecutions, as affirmed by this Court in Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372. He also acknowledged that the courts will rarely interfere with the exercise of prosecutorial discretion. In his view, however, “when that discretion is exercised in favour of proceeding, the matter becomes subject to the processes and procedures sanctioned by the court” (para. 12). Thus, he held that negotiations between counsel after charges are laid were matters of tactics or conduct which were subject to review by the court.
[12] The application judge then discussed the standard against which to measure the Crown’s conduct. He concluded that the Crown’s ability to repudiate a plea agreement is akin to the discretion of a trial judge to reject a joint submission on sentence: the determinative test was whether the plea agreement was “reasonably defensible”. Before delving into that issue, however, the application judge dealt with Ms. Nixon’s concern that the decision to repudiate was motivated by political considerations. After reviewing the relevant evidence, he concluded that “there is absolutely no evidence” of political interference (para. 22) and “nothing to suggest that [the ADM’s] action was taken in bad faith or to accommodate a real or perceived political stance of his Minister of Justice” (para. 25).
[13] The application judge emphasized that the relevant test is whether the plea agreement was “reasonably defensible”. In his view, if the Crown is to justify its course of action to repudiate the agreement, then it must do more than establish that others would have reached a different conclusion. In the case at bar, he concluded that the repudiation of the plea agreement was not justified, as Crown counsel’s assessment of the case was “reasonably defensible”. The application judge held further that where the court is satisfied that the original bargain, if honoured, would not be contrary to the public interest and would not bring the administration of justice into disrepute, it is irrelevant whether the accused suffered prejudice. He added that if he were required to find prejudice, he would do so here. In his view, Ms. Nixon was prejudiced because defence counsel was led to believe that the evidence of breath samples would not be adduced at trial and, consequently, did not explore that issue at the preliminary hearing.
[14] The application judge concluded that Ms. Nixon’s s. 7 right to security of the person was breached and, by way of remedy, he directed the Crown to proceed with the agreement before another judge. Ms. Nixon subsequently pleaded guilty to the offence of careless driving, was sentenced to a fine of $1,800, and was acquitted of the Criminal Code offences.
[15] The Crown appealed the acquittals. The Court of Appeal of Alberta allowed the appeal, holding that the application judge erred in law by finding that Ms. Nixon’s s. 7 Charter rights were violated. Paperny J.A. (Côté and Slatter JJ.A. concurring) found that the application judge used the wrong test to distinguish between matters that fall within the scope of prosecutorial discretion and those more properly characterized as a prosecutor’s tactics and conduct before the court. The line cannot be artificially drawn at the courtroom door. Paperny J.A. stated: “Rather, the relevant inquiry is whether the impugned decision falls within the core of the prosecutor’s discretion: is it a decision as to whether a prosecution should be brought, continued or ceased, and if so, what it should be for?” (para. 32). Here, the decision to continue the prosecution is a matter of prosecutorial discretion which is not reviewable by the courts, subject to the doctrine of abuse of process.
[16] Paperny J.A. held that the application judge further erred in finding that a plea agreement can only be repudiated if the original decision is unreasonable or not “reasonably defensible”. Instead of reviewing the initial decision of Crown counsel, he should have reviewed the circumstances surrounding the ADM’s decision to repudiate the plea agreement to determine whether that decision amounted to an abuse of process. The relevant inquiry under s. 7 of the Charter is whether there is conduct which either causes prejudice to the accused by rendering the trial unfair, or affects the integrity of the justice system itself. As she put it, “Due regard to the constitutional role occupied by the Crown demands a deferential standard of review” (para. 49). Absent prejudice which renders the trial unfair, there must be proof of “prosecutorial misconduct, improper motive or bad faith in the approach, circumstances or ultimate decision to repudiate” (para. 49). Applying this test, Paperny J.A. concluded that there was no evidence to support a finding of abuse of process in the circumstances of this case. The acquittals were set aside and a new trial was ordered on the dangerous driving charges.
[17] Ms. Nixon appeals to this Court.
3. Analysis
3.1 The Scope of Prosecutorial Discretion
[18] Much of the debate between the parties in this Court was centred on whether the Crown’s repudiation of a plea agreement is a matter of “prosecutorial discretion” reviewable only for abuse of process, or a matter of “tactics or conduct before the court” governed by the inherent jurisdiction of the criminal trial court to control its own process. The crucial importance of this distinction was fully canvassed and explained in Krieger.
[19] In Krieger, the Law Society of Alberta claimed that it had jurisdiction over all members of the profession within the province, including those employed by the Attorney General of Alberta. Thus, it purported to investigate an allegation of bad faith or dishonesty against Crown counsel in connection with a failure to disclose relevant information to the accused as required by law. The Attorney General and Krieger, who was Crown counsel, challenged the Law Society’s jurisdiction, arguing that decisions made by an agent of the Attorney General in the conduct of a prosecution were immune from review under the doctrine of prosecutorial discretion.
[20] Iacobucci and Major JJ., writing for the Court, reviewed the nature and development of the Attorney General’s office in Canada and affirmed the independence of the office as “a constitutional principle in this country” (para. 30). The Court explained that the principle of independence requires that the Attorney General “act independently of partisan concerns when supervising prosecutorial decisions” and how it “finds further form in the principle that courts will not interfere with his exercise of executive authority, as reflected in the prosecutorial decision‑making process” (paras. 30 and 31). The Court stressed the fundamental importance of the principle of independence in these terms (at para 32):
The court’s acknowledgment of the Attorney General’s independence from judicial review in the sphere of prosecutorial discretion has its strongest source in the fundamental principle of the rule of law under our Constitution. Subject to the abuse of process doctrine, supervising one litigant’s decision-making process — rather than the conduct of litigants before the court — is beyond the legitimate reach of the court. . . . The quasi-judicial function of the Attorney General cannot be subjected to interference from parties who are not as competent to consider the various factors involved in making a decision to prosecute. To subject such decisions to political interference, or to judicial supervision, could erode the integrity of our system of prosecution. Clearly drawn constitutional lines are necessary in areas subject to such grave potential conflict. [Emphasis added.]
[21] The Court ultimately concluded, however, that the Law Society retained jurisdiction over Krieger’s alleged misconduct, as it was a matter that fell outside the scope of the doctrine. In explaining the proper contours of prosecutorial discretion, the Court drew the distinction between acts of prosecutorial discretion, and tactics or conduct. This distinction is now at the heart of the division in this appeal. Iacobucci and Major JJ. explained the difference as follows:
“Prosecutorial discretion” is a term of art. It does not simply refer to any discretionary decision made by a Crown prosecutor. Prosecutorial discretion refers to the use of those powers that constitute the core of the Attorney General’s office and which are protected from the influence of improper political and other vitiating factors by the principle of independence.
. . .
Without being exhaustive, we believe the core elements of prosecutorial discretion encompass the following: (a) the discretion whether to bring the prosecution of a charge laid by police; (b) the discretion to enter a stay of proceedings in either a private or public prosecution, as codified in the Criminal Code, R.S.C. 1985, c. C-46, ss. 579 and 579.1 ; (c) the discretion to accept a guilty plea to a lesser charge; (d) the discretion to withdraw from criminal proceedings altogether: R. v. Osborne (1975), 25 C.C.C. (2d) 405 (N.B.C.A.); and (e) the discretion to take control of a private prosecution: R. v. Osiowy (1989), 50 C.C.C. (3d) 189 (Sask. C.A.). While there are other discretionary decisions, these are the core of the delegated sovereign authority peculiar to the office of the Attorney General.
Significantly, what is common to the various elements of prosecutorial discretion is that they involve the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for. Put differently, prosecutorial discretion refers to decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it. Decisions that do not go to the nature and extent of the prosecution, i.e., the decisions that govern a Crown prosecutor’s tactics or conduct before the court, do not fall within the scope of prosecutorial discretion. Rather, such decisions are governed by the inherent jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum. [First emphasis added; second and third emphases in original; paras. 43 and 46-47.]
3.2 Submissions of the Parties
[22] On the one hand, Ms. Nixon submits that the Court of Appeal erred when it concluded that the Crown’s decision to renege on its agreement with the defence was an aspect of its traditional, constitutionally protected, core discretionary powers. She contends that the Crown’s decision to resile from the agreement constitutes a reversal in tactic subject to broader review. Given that Crown counsel’s offer had been accepted by the defence, the resulting plea agreement is akin to a contractual undertaking. A bargain is a bargain, it is argued. Absent some vitiating flaw in the negotiating process, such as mistake, misrepresentation or fraud, the Crown should be held strictly to its word. It is not necessary for the applicant to show that she has been prejudiced, or to establish independent acts of “bad faith” or “flagrant impropriety”. Unless the Crown can satisfy the court that implementing the plea agreement would itself bring the administration of justice into disrepute, the repudiation of a valid plea agreement, in and of itself, constitutes an abuse of process. In short, Ms. Nixon argues that the application judge adopted the correct approach and urges the Court to restore his decision.
[23] The intervener Criminal Trial Lawyers’ Association (“CTLA”) supports Ms. Nixon’s argument that the Crown’s promise to enter into a plea agreement is an undertaking “like any other given by a lawyer”. It argues that the undertaking “must be strictly and scrupulously fulfilled” and that an abuse of process need not be shown before the agreement may be summarily enforced by a court (Factum of the CTLA, at para. 2).
[24] The Criminal Lawyers’ Association (Ontario) (“CLA”) also supports Ms. Nixon’s position that the repudiation of a plea agreement does not fall within “core” Crown discretion identified in Krieger. Thus, the CLA submits that judicial review of a repudiation decision is warranted even in the absence of “flagrant impropriety” or bad faith. Rather, the test for allowing Crown repudiation of a plea agreement should be essentially the same as the test applied for allowing a sentencing judge to reject a joint submission: would the proposed resolution bring the administration of justice into disrepute? The CLA submits that “[r]epudiation is an abuse of process unless the Crown discharges its onus of demonstrating that the contemplated agreement would have brought the administration of justice into disrepute and the accused can be restored to his or her initial position” (Factum of the CLA, at para. 1 (emphasis in original)).
[25] On the other hand, the respondent, the Attorney General of Alberta, takes the position that both the plea agreement and the repudiation are acts that fall within the scope of the doctrine of prosecutorial discretion. As such, neither is open to review or supervision by the courts, except through an allegation of abuse of process. The respondent argues that the test advocated by Ms. Nixon and by the supporting interveners does not meet the high threshold for proving abuse of process. Abuse of process that involves core prosecutorial discretion requires proof of bad faith or flagrant impropriety by the Crown. Here, there was no evidence of any such conduct by the Crown officials in their review and repudiation of the plea agreement. Nor did Ms. Nixon suffer any prejudice as a result of the repudiation, given that she was restored to the position she was in at the conclusion of the preliminary inquiry, before the plea agreement was struck. Therefore, the Court of Appeal rightly concluded that there was no basis for finding a breach of her s. 7 rights.
[26] Attorneys General from three provinces intervened in support of the respondent’s position. In particular, they submit that the approach adopted by the application judge runs afoul with the principle of independence affirmed in Krieger. The Attorney General of Ontario submits that this Court’s decision in Krieger has been misinterpreted by lower courts. It asks this Court to confirm that Krieger was never intended to narrow the area of protected prosecutorial discretion, or to create a schism in threshold tests for finding an abuse of process depending on whether a decision is considered “core” or “non-core”. All acts of prosecutorial discretion are immune from judicial supervision, subject only to the same high threshold for abuse of process.
[27] Along the same lines, the Attorney General of British Columbia (“AGBC”) emphasizes the importance of criminal trial courts not proceeding with a review of prosecutorial discretion in the absence of a “threshold determination” that the inquiry is warranted. In the absence of evidence of irremediable impairment to the fair trial interests of the accused, a criminal trial court should only proceed with an application for relief challenging prosecutorial discretion under the residual category of abuse of process if there is an evidentiary record capable of supporting the claim. This approach helps to avoid scenarios such as the case at bar, where the trial judge engaged in a full examination of the reasons behind the decision to renege on the plea agreement, even though there was nothing to suggest that the decision was motivated by improper considerations, or was made in bad faith.
[28] Finally, the Attorney General of Manitoba (“AGM”) intervenes to underscore the importance of the Attorney General’s supervisory role over the exercise of prosecutorial discretion. Acknowledging that the repudiation of plea agreements is and should be rare, it argues that “when the Attorney General, or a senior delegate, makes a bona fide decision to overturn a plea agreement that he or she determines is contrary to the public interest, that decision is part of the proper and usual institutional checks and balances necessary for the justice system to function properly” (Factum of the AGM, at para. 3).
3.3 The Plea Agreement and Its Repudiation Are Acts of Prosecutorial Discretion
[29] None of the participants in this appeal disputes that Crown counsel’s decision to resolve the proceedings by accepting a plea to a lesser offence falls within the scope of prosecutorial discretion as defined in Krieger. To the extent that the application judge’s analysis suggests that anything occurring after the charges are laid falls outside the scope of prosecutorial discretion, it cannot be sustained. If the line were to be drawn at the point seemingly chosen by the application judge, namely “when [the] discretion is exercised in favour of proceeding” (para. 12), Crown counsel’s decision to enter into a plea agreement would itself be subject to review by the court as a matter of conduct or tactic without regard to the principles of judicial restraint set out in Krieger. As noted by Paperny J.A., to artificially draw the line at the courtroom door “effectively neuters some of the primary purposes of prosecutorial discretion, to resolve cases by accepting pleas to lesser charges and to discontinue prosecutions” (para. 32).
[30] In my view, the question of whether the ADM’s decision to repudiate the plea agreement is an act of prosecutorial discretion, although disputed in this appeal, is just as easily resolved. As aptly put by Paperny J.A., in determining whether any impugned decision falls within the core of prosecutorial discretion, it is useful to ask: “. . . is it a decision as to whether a prosecution should be brought, continued or ceased, and if so, what it should be for?” (para. 32). Applying this test, she held that the ADM’s decision to repudiate the plea agreement “fell squarely within the core elements of prosecutorial discretion” (para. 33). I agree. In my respectful view, it is difficult to see how the ADM’s decision could otherwise be characterized. The ADM effectively decided that the prosecution against Ms. Nixon should be continued and that it should be for the Criminal Code offences of dangerous driving, not for the traffic infraction of careless driving. Clearly, the ADM’s decision to repudiate the plea agreement also constitutes an act of prosecutorial discretion. Prosecutorial discretion was not spent with the decision to initiate the proceedings, nor did it terminate with the plea agreement. So long as the proceedings are ongoing, the Crown may be required to make further decisions about whether the prosecution should be continued and, if so, in respect of what charges.
[31] Thus, it follows that the Crown’s ultimate decision to resile from the plea agreement and to continue the prosecution is subject to the principles set out in Krieger: it is only subject to judicial review for abuse of process.
[32] The more difficult question in this appeal is how the initial exercise of prosecutorial discretion — Crown counsel’s offer to resolve the matter on the basis of a plea to a lesser charge — should figure in the analysis regarding abuse of process. As outlined earlier, the parties and interveners present very divergent views on how this question should be answered. Before dealing with these arguments, I will review the law on abuse of process.
3.4 The Doctrine of Abuse of Process
[33] Until this Court’s decision in R. v. Jewitt, [1985] 2 S.C.R. 128, there was much controversy about whether a court had the power to stay validly instituted criminal proceedings for abuse of process. The inherent jurisdiction of a superior court to control its own process by staying abusive proceedings had long been recognized in Canada. However, it remained uncertain whether criminal courts had the discretion to stay proceedings for abuse of process, or whether this was a power reserved for the Attorney General under s. 508 (now s. 579 ) of the Criminal Code (pp. 131-32).
[34] Jewitt put an end to the uncertainty by recognizing that a trial court judge had a “residual discretion” to stay proceedings to remedy abuse of process. The Court held that the common law doctrine could be applied in narrow circumstances “where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency and to prevent the abuse of a court’s process through oppressive or vexatious proceedings” (pp. 136-37).
[35] Initially, the common law doctrine of abuse of process was viewed as analytically distinct from Charter considerations since its focus was more on maintaining confidence in the integrity of the judicial system than on protecting individual rights. The common law and Charter analyses were also kept separate because of the different burdens of proof to successfully make out an abuse of process claim under the two regimes. For an applicant to establish a violation under the Charter , the burden of proof was the balance of probabilities standard. For an applicant to successfully invoke the court’s common law power to stay proceedings for abuse of process, the burden of proof was the more onerous “clearest of cases” standard.
[36] Ten years later in R. v. O’Connor, [1995] 4 S