R. v. Nixon: The non-binding plea agreement
CBC writes, the “Supreme Court has never ruled on whether a prosecutor can cancel a plea deal.” In a unanimous Supreme Court decision by Justice Charron in R. v. Nixon, the SCC ruled on exactly that issue.
Justice Charron’s decision identifies the applicable test when a Crown reneges on a plea agreement. Indeed there is a high threshold in such cases, one which flows from Krieger v. Law Society of Alberta, falling under prosecutorial discretion and abuse of process doctrine. CBC highlights this case as an important decision in Canadian criminal law, given that it marks the first time SCC “justices have ruled on the discretion allowed [sic] prosecutors in plea agreements.” And that discretion is vast.
The accused, Ms. Olga Maria Nixon, while allegedly impaired by alcohol, struck another car with her motor home, killing a husband and wife and injuring their young son. Ms. Nixon was initially charged with several Criminal Code offences.
However, because the first Crown attorney felt some key evidence would be inadmissible, the Crown entered into a plea agreement with Ms. Nixon in which she would plead guilty to a lesser charge of careless driving under the Alberta Traffic Safety Act and receive a $1,800 fine. This deal would mean Ms. Nixon would escape any Criminal Code offences.
Upon learning about the deal, the Acting Assistant Deputy Minister (ADM) of the Criminal Justice Division of Alberta’s Attorney General’s Office initiated an inquiry, leading him to conclude the initial Crown counsel’s assessment was flawed, and thus rescinded the plea agreement. Central to the ADM’s decision was the plea agreement was “contrary to the interests of justice and would bring the administration of justice into disrepute.”
After the plea agreement was repudiated, Ms. Nixon brought a s. 7 Charter application, alleging abuse of process and requesting the court restore the plea agreement. At the Provincial Court of Alberta, Justice Ayotte ruled in favour of Ms. Nixon, basing his decision on the view 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.”
However, at the Alberta Court of Appeal, Justice Ayotte’s decision was overturned in favour of the Crown by Justices Paperny, Côté, and Slatter. The Court of Appeal held a decision to renege the plea agreement is “a matter of prosecutorial discretion not reviewable by the courts, subject to the doctrine of abuse of process.” The latter ruling was upheld by a unanimous SCC.
Prosecutorial Discretion, Repudiation, & The Abuse of Process Doctrine
The question before the SCC was whether the Crown’s repudiation of a plea agreement was an abuse of process that breaches Ms. Nixon’s s. 7 Charter rights. The next question was what “the appropriate standard against which to measure the repudiation conduct.”
Krieger v. Law Society of Alberta was a key factor in Justice Charron’s decision. This was because the main contention between the parties was whether the Crown’s repudiation was “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.”
Justice Charron sets a very clear test: “in the absence of any prosecutorial misconduct, improper motive or bad faith in the approach, circumstances, or ultimate decision to repudiate, the decision to proceed with the prosecution is the Crown’s alone to make.”
Because the SCC ruled there was no argument against the negotiation process itself being under prosecutorial discretion, it was decided that no line can be drawn after charges are laid, which is the line drawn by the trial judge leading to a favourable decision for the accused. With this issue determined, repudiation was within prosecutorial discretion – now subject only to the abuse of process doctrine.
Justice Charron declared the Court of Appeal correctly assessed the “circumstances surrounding the repudiation to determine whether that decision amounted to an abuse of process.” Given that no prejudice to the accused could be shown, nor any misconduct, improper motive or bad faith in the ADM and Crown’s decisions, Ms. Nixon’s appeal was subsequently dismissed.
Defense Counsel Beware
This case involves several interveners including the Attorney Generals of three provinces (Ontario, Manitoba, British Columbia, in addition to Alberta who was the respondent) as well as the Criminal Trial Lawyers’ Association and Criminal Lawyers’ Association (Ontario). The stakes were high.
Justice Charron’s decision declared, barring any abuse of process on the part of the Crown, that the Crown has the discretion to rescind any plea bargains it makes. However, Justice Charron nevertheless ruled that, such agreements “cannot be “overturned on a whim”, and the “method by which the decision was reached can itself reveal misconduct of a sufficient degree to amount to abuse of process.”
This decision narrows the court’s role in overruling a Crown’s decision to renege a plea agreement. In fact, only a successful abuse of process claim has any chance of succeeding and the threshold is now set very high. However, it would appear that Justice Charron’s decision does lower the evidentiary burden placed on such cases at the initial stage: once a plea bargain is reneged the evidentiary threshold is already met, the Crown must simply disclose the reasons for why it reneged. Then the burden shifts to the accused to demonstrate an abuse of process.
One of the main lessons to be drawn by defense counsel from this case is to be cautious of negotiating a plea agreement. The abuse of process doctrine which decided the outcome of the case at hand means the Crown has a wide scope of discretion, and the burden placed upon the accused to show an abuse of process is extremely high.
The results of this case may well lead to a slippery slope, balancing competing interests in this case was quite difficult. If a Crown can easily renege on plea agreements, it provides a very difficult terrain for defense counsel to navigate. Mr. D’Arcy DePoe, intervener in this case for the Criminal Trial Lawyers Association, says that the ruling may allow the Crown to insulate their decisions from the abuse of process doctrine by not disclosing or masking reasons for repudiation, thereby providing them with an arbitrary capacity to renege agreements without punishment.
Justice Charron herself acknowledges the necessity of both negotiating and honouring plea agreements, writing that repudiation should only occur in “exceptional and rare circumstances.” In fact, Justice Charron, drawing from Ontario’s 1993 Martin Committee Report, calls honouring plea agreements “not only “ethically imperative”, but also a “practical necessity”, as these agreements “dispose of the great bulk of the contentious issues that come before the criminal courts in Ontario.”
But a determining factor in this case was the broader public interest. The initial Crown’s decision to enter into a plea agreement with the accused was a poor decision indeed. The plea agreement would drop Criminal Code charges against the accused, someone accused of killing a married couple and orphaning their young son. The accused would have been allowed to plead guilty to careless driving and pay a mere $1,800 in fines. In this case, it is hard to say the ADM’s decision to renege on the plea agreement was not in the public’s interest. But now the powers which the Crown has attained through this case may alter a key feature, and “practical necessity”, of Canada’s criminal law system.
There are certain lessons to be taken from this decision for defense counsel. First, the initial Crown’s decision to enter into a plea agreement should be taken with a grain of salt. It is only when a higher level of confirmation can been attained, as in this case through the Assistant Deputy Minister, that a defence counsel can rely on the assurances of a plea agreement.
Second, the broader public interest should be considered. Defense counsel must anticipate any way the Crown may renege upon a plea agreement, using justifications under the concepts of “contrary to the interests of justice” and bringing “the administration of justice into disrepute.”
Third, any abuse of process argument must focus on the Crown’s repudiation conduct being “so unfair oppressive” to the accused or “so tainted by bad faith or improper motive” that it would “tarnish the integrity of the judicial system.” Again, this is an extremely high threshold to meet, and it should be noted that the ambiguous nature of the latter principle provides a significant amount of leeway for Crown counsel to manoeuvre. Nevertheless it is imperative to create a paper trail from the commencement of the negotiation process and to be meticulous in tracking any misconduct or bad faith on the part of the Crown.
As such, defense counsel should be wary within the plea agreement process and be mindful of the high evidentiary requirements in vindicating a claim when the Crown improperly reneges on a plea agreement.
For a criminal legal system whose functioning depends, ideally, upon trust and cooperation between the Crown and defense, R. v. Nixon may have unintentionally eroded some within it.