When the offer leaves the table: R. v. Nixon
By Suhail Akhtar, Assistant Crown Attorney
The Supreme Court of Canada handed down its decision in an Alberta case dealing with the Crown's ability to repudiate a previously agreed plea bargain with the defence.

R. v. E.M.W. [2011] S.C.J. No.31 (S.C.C.) - Case Summary
By James A. Gumpert, Q.C., Crown Counsel, N.S. Prosecution Service, Halifax
In R. v. E.M.W. [2011], the Supreme Court of Canada commented on the desirability and importance of the opposing party in an appeal to have notice of the issues that are going to be raised or considered at the hearing of the appeal.

Message from the Chair: CBA's Commentary on Bill C-10
By Daniel A. MacRury, Q.C., Crown Counsel, N.S. Prosecution Service, Sydney
In a submission to the Commons Committee on Justice and Human Rights, presented in October 2011, the CBA suggested that passing Bill C-10, the so called Safe Streets and Communities Act, would be a mistake... 

When the offer leaves the table: R. v. Nixon

By Suhail Akhtar

On June 24, 2011, the Supreme Court of Canada handed down its decision in the case of Her Majesty the Queen v. Olga Maria Nixon [2011] S.C.J. No. 34. Nixon is an Alberta case which dealt with the Crown's ability to repudiate a previously agreed plea bargain with the defence. The criticism surrounding the case appeared to suggest that a new era of Crown negotiation and subsequent changing of minds was about to begin. Many commentators appear to be outraged that the Crown could make a deal with counsel for the defence and subsequently change its mind!

The facts surrounding the case bear repeating. Nixon was charged a number of Criminal Code offences relating to an incident in which her vehicle, driving through an intersection, had collided with another killing two of the passengers and injuring a third. The Crown and defence initially entered into a plea agreement for Nixon to plead guilty to a charge of careless driving with a joint sentence recommendation for a $1,800 fine. The more serious charges would, as a result, be withdrawn.

After reviewing the case, the Acting Assistant Deputy Minister (Criminal Justice Division, Office of the Attorney General) took the view that such a plea would have the effect of bringing the administration of justice into disrepute. Consequently, the agreement was withdrawn and the Crown indicated it would proceed to trial on the existing charges of dangerous driving causing death, etc. Nixon brought a section 7 Charter challenge, claiming that the repudiation was an abuse of process. The application judge entertaining the motion agreed, ruling that the Crown had to proceed with the plea as agreed with defence counsel. The Alberta Court of Appeal allowed the subsequent appeal by the Crown finding that the conduct was a matter of prosecutorial discretion, reviewable only for abuse of process. Because no evidence was found of abuse of process, it was, therefore, not subject to review by the courts.

It is worth noting that previous jurisprudence with respect to Crown changes of position centred on the prejudicial aspects used. In other words, when the Crown changed its position, an accused person had to show that his or her reliance on that position caused an act which would now result in prejudice if the position was not honoured.

Significantly, the burden on the defence was somewhat high, given that it had to prove prejudice.

However, in 2006, a case that presaged Nixon came from the jurisdiction of Brampton, Ontario. The name of the case, R. N.M. [2006] O.J. No. 3875, reflected the fact that the accused was a youth. By coincidence, it was also a case which involved dangerous driving. With some further coincidence, it should be noted that the same deal was offered by the Crown in that it was willing to accept a plea to careless driving in exchange for a withdrawal of the more serious charge of dangerous driving. That agreement was made prior to trial. On the day of the trial, however, a more senior Crown counsel, having reviewed the file, came to the conclusion the deal was inappropriate. Accordingly, he informed both defence counsel and the court that it was no longer on offer and that the Crown intended to proceed to trial on the more serious charges. Significantly, Crown counsel offered no explanation for the change of heart and asserted his new position simply on the podium of prosecutorial discretion. The youth court judge, attempting to elicit the reasons from the Crown concluded that the Crown was correct and that its decision could not be reviewed. The defence brought an extraordinary remedy to the Superior Court requesting that the original plea agreement be honoured by the Crown. After an extensive review of the authorities, the reviewing judge, Hill J., concluded that prosecutorial discretion did not cover this set of circumstances. He decided that a plea agreement in which the Crown offered a less serious charge took the form of an undertaking. If the Crown wished to renege on that agreement, it had to provide an explanation as to why the change of heart had occurred. In this particular case, the trial crown had failed to do so. Hill J. ordered a new trial without deciding the issue of whether or not the Crown should be forced to proceed with the original agreement. In his view, the abuse of process motion which alleged that the Crown had to be held to its original offer could be litigated at trial, whereupon the Crown, through viva voce evidence, had to provide an explanation as to why it changed its mind and with grew from the agreement.

Which brings us back to Nixon and the reasoning of the Supreme Court of Canada. The original applications judge had found an abuse of process by using the “reasonably defensible” test; i.e., if the original decision made by Crown counsel was “reasonably defensible,” then the repudiation of the original agreement was not justified. The Alberta Court of Appeal in allowing the Crown's appeal held that the applications judge had used the wrong test. According to the court, what should have been reviewed was not the original decision's qualities of being reasonably defensible but the circumstances surrounding the change of decision by the Assistant Deputy Minister.

A large part of the Supreme Court of Canada's analysis centred on whether or not repudiating a plea agreement was actually part of the “core” functions of prosecutorial discretion. If so, it could not be reviewed unless an abuse of process could be demonstrated by the defence: a rule of law established in the leading case of Krieger and the Law Society of Alberta. Ms. Nixon's counsel and the Criminal Lawyers' Association argued that such a repudiation was not part of the “core” Crown discretion and therefore judicial review could take place even in the absence of bad faith or flagrant impropriety. The respondent, the Attorney General of Alberta (supported by several provincial Attorneys General) argued that such a decision formed part of the “core” discretion. The Supreme Court of Canada agreed with them. Charron J., writing for the court, stated it would effectively “neuter” the primary purposes of prosecutorial discretion to allow the courts to review prosecutorial discretion after the decision to proceed had been made. According to Charron J.:

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. [para. 30]

Thus, resiling from a plea agreement was part of the “core” function and could only be reviewed by a finding of an abuse of process.

The Court also felt that the “reasonably defensible” approach had no place in deciding an issue such as this. Efforts to “second guess” the Crown's decision would place the court in a position of entering the arena and risk the court losing its appearance of independence and impartiality. The correct test was that of abuse of process and whether such conduct was so tainted by bad faith or unfairness that to allow the Crown to proceed with breaking the agreement would tarnish the integrity of the justice system.

However, the court felt an evidentiary inquiry would be required to settle the claim of abuse of process. Even though the onus would be on the party claiming the abuse (always the defence), evidence of the fact of resiling would be sufficient to establish a threshold for embarking upon the inquiry. The evidentiary burden would then shift to the Crown to “enlighten the court” as to why and how the decision to resile from the agreement was made. If the Crown provided little or no explanation, that factor would weigh heavily in favour of a finding of an abuse of process.

In the circumstances of Ms. Nixon's case, the background, reasoning and decision making had all been explained before the applications judge. The court concluded that on the record before that judge there had been no evidence of any prosecutorial misconduct, improper motive or bad faith. Indeed, the court found that the ADM of Alberta had acted in good faith in deciding that the Crown's original plea would bring the administration of justice into disrepute. It was also noted that Ms. Nixon suffered no prejudice as she was merely returned to the position she was at the conclusion of the preliminary hearing.

So, where does all this leave the state of plea agreements in Canadian law? Before running for cover under the doom-and-gloom scenario of plea agreements meaning nothing (envisaged by some commentators), the following points should be remembered:

1. The Supreme Court of Canada made it clear that situations in which the Crown could properly repudiate a plea agreement “are, and remain, very rare.” The language used by the court makes it clear that resiling from an agreement is going to be subject to rigorous scrutiny.
2. It is also clear that the justification for the repudiation will be borne by the Crown. Although the onus of proving an abuse of process remains on the defence, the practical reality is that the Crown will be forced to call evidence to demonstrate the reason for its change of heart. This, too, is a departure from previous analyses that focussed primarily on prejudice to the accused.
3. Finally, prejudice is not removed from the equation of the allegation of abuse of process. If a person has relied upon the Crown's offer and agreement to his or her prejudice, that will become a substantial factor in the balancing analysis in deciding whether or not allowing the Crown to resile from its agreement would tarnish the integrity of the justice system.
4. The decision recognizes an important fact: sometimes the Crown makes a mistake and is entitled to rectify that error so long as it is fair to do so. Society and the public interest are not well served by a rigid system that equates the pre-trial discussions of the criminal justice system with forms of contract.

Most of all the following passage exemplifies the balanced approach taken by the court:

Of course, there may be instances where different Crown counsel will invariably disagree about the appropriate plea agreement in a particular case. Given the number of complex factors that must be weighed over the course of plea resolution discussions, this reality is unsurprising. However, the vital importance of upholding such agreements means that, in those instances where there is disagreement, the Crown may simply have to live with the initial decision that has been made. To hold otherwise would mean that defence lawyers would no longer have confidence in the finality of negotiated agreements reached with front-line Crown counsel, with whom they work on a daily basis. Further, if agreements arrived at over the course of resolution discussions cannot be relied upon by the accused, the benefits that resolutions produce for both the accused and the administration of justice cannot be achieved. As a result, I reiterate that the situations in which the Crown can properly repudiate a resolution agreement are, and must remain, very rare. [para. 48]

Any views expressed in this article are the views of the author and do not in any way represent the views of the Ministry of the Attorney General, Ontario.

Suhail Akhtar is an Assistant Crown Attorney.

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R. v. E.M.W. [2011] S.C.J. No.31 (S.C.C.) - Case Summary

By James A. Gumpert, Q.C.

The decision of the Supreme Court of Canada in R. v. E.M.W. (released on June 17, 2011) is of assistance to practitioners in courts of appeal across Canada. The Supreme Court of Canada comments on the desirability and importance of the opposing party in an appeal to have notice of the issues that are going to be raised or considered at the hearing of the appeal.

In its decision the Supreme Court of Canada also comments on issues specific to the facts of this particular case. These issues were alleged improper use of prior consistent statements to bolster evidence, alleged improper questions by Crown Counsel leading to a miscarriage of justice and what are "leading questions".

E.M.W. had been convicted in Provincial Court of sexual assault of his young daughter.

E.M.W.'s conviction had been overturned by a majority of the Nova Scotia Court of Appeal. The majority held that the trial judge erred in his use of the complainant's prior consistent statements and that the trial was unfair to the point of creating a miscarriage of justice. The minority held that the issues of miscarriage of justice and admissibility of evidence were not appealed to the Court of Appeal and were, therefore, not properly before the Court of Appeal. The minority also ruled that the trial judge did not improperly use prior statements.

By a 6 to 1 majority, the Supreme Court of Canada overturned the decision of the Nova Scotia Court of Appeal and restored the conviction for sexual assault. The Supreme Court ruled that the trial judge had not improperly used prior statements by the complainant to bolster the evidence of the complainant.

The Supreme Court also ruled that, indeed, statements were made or questions were asked by Crown Counsel that were tasteless or unsavoury. As well, Crown Counsel's soliloquizing on personal matters was unnecessary. The Supreme Court concluded that there were, in fact, defects in this "far from perfect" trial. However, the Court disagreed with the Nova Scotia Court of Appeal that the defects rendered the proceedings so unfair as to give rise to a miscarriage of justice. The Supreme Court also overturned the Nova Scotia Court of Appeal on the issue of leading questions. At paragraph 9 of its decision the Supreme Court held:

We do not agree with the majority of the Court of Appeal that Crown counsel asked impermissible leading questions of the complainant. Leading questions are questions that suggest an answer or assume a state of facts that is in dispute. Here the questions put by Crown counsel to the complainant in examination in chief did not cross this threshold. Crown counsel, in meeting the challenge of a child reluctant to respond, asked binary questions that gave her a choice between alternatives. They did not, however, suggest an answer. The main components of the offence were elicited from the complainant by non‑leading questions. We are not satisfied that her evidence, viewed as a whole, was improperly obtained by leading questions.

Finally, the Supreme Court of Canada spoke essentially about good practice requirements in a court of appeal for notice to counsel of issues that are going to be raised or considered at an appeal hearing. The Court held at paragraph 4:

The first question is whether the majority of the Court of Appeal erred in allowing the appeal, given that the issues of miscarriage of justice and admissibility of the evidence were not raised in the Notice of Appeal. We agree with the respondent that the failure to expressly raise miscarriage of justice as a distinct ground of appeal does not deprive a Court of Appeal of jurisdiction to consider that issue. A potential miscarriage of justice is always something a court must be able to consider. However, the fact remains that the rules require that the grounds that the appellant relies on be set out. This ensures that the opposite party has notice of what will be raised. More broadly, it ensures that the court receives full submissions on all the issues that will be raised. Where additional grounds come to light after filing, good practice requires that the grounds be amended. If the court wishes to explore an issue that has not been raised, it may be necessary to grant an adjournment to ensure a full and fair hearing.                                                                                                                     [Emphasis added]

James A. Gumpert, Q.C. is an Executive Member of the CBA Criminal Justice Section. He is a Senior Crown Counsel with the Nova Scotia Public Prosecution Service and he argued R. v. E.M.W. in the Supreme Court of Canada on behalf of the Appellant Crown.

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Message from the Chair: CBA's Commentary on Bill C-10

By Daniel A. MacRury, Q.C.

In a submission to the Commons Committee on Justice and Human Rights, presented in October 2011, the Canadian Bar Association suggested that passing Bill C-10, the so called Safe Streets and Communities Act, would be a mistake.

Canadians deserve accurate information about the Bill and the costs involved before it moves forward. Catchy slogan-like titles are used to describe the various proposals it contains, but this marketing approach misrepresents the actual content. The CBA is concerned that public support is based on inaccurate information, and with no reliable price tag, we wonder how anyone can responsibly decide if what will be sacrificed to pay for these initiatives is really worth the cost. We say that accurate information, transparent communication of the real objectives at play, and proper Parliamentary process are essential to democratic law reform.

Instead of careful, thorough Parliamentary review, Bill C-10 is being rushed through the process to meet the “100 day passage” promise from the last election. Canadian taxpayers are paying for expert witnesses to appear before the Commons committee studying the Bill, and should know those witnesses have exactly 5 minutes to comment on all nine proposals, over 150 pages of legislation, and are then cut off midsentence. These nine distinct, important and complicated proposals represent a real turning point in Canada's criminal justice and corrections policy. Contrary to government claims, some component parts have had no previous study by Parliament, and some were studied and changed, but are back in Bill C-10 without those changes.

Government MPs are dismissing academics who have dedicated their lives to studying these issues as elitist, and out of touch with the real problems. Similarly, the CBA, representing prosecutors and defence counsel from every part of Canada, is branded a “supporter of criminals”. CBA members have children, live in communities, and care about public safety, like other Canadians. We volunteer legal expertise and daily courtroom experience to assist the government in law reform, based on practical knowledge as to what will work to achieve public safety goals and keep our courts running smoothly. The CBA does not “support criminals”. We do support a fair and efficient justice system that relies on established knowledge as to what reduces crime.

Yes, the government promised to deliver this Bill in its election platform. It has been less clear with Canadians about what this unprecedented piece of criminal justice legislation actually contains, and what it will mean for Canada. All societies have to deal with some criminal behaviour, and relatively speaking, Canada is a safe place to live, with declining crime rates. Bill C-10 claims it would improve public safety, but CBA says it would actually make Canada a less safe, less humane country.

On the table now are new institutions, mandatory sentences for even minor, non-violent offences, less humane treatment of inmates, and steps to make reintegration into society more difficult. Have Canadians decided to blithely head down a road that others, notably Texas and California, have abandoned, at great public cost? We think that informed Canadians would be more likely to want to learn from that experience. At a time when the economy is front and centre in Canadians' minds, can we really afford to say, cost be damned?

In addition to ignoring international experience, the Bill ignores decades of research and experience about what actually works to reduce crime; addressing child poverty, providing health and social services for the mentally ill and people with FASD, diverting young offenders away from the criminal justice system, and taking steps so prisoners re-enter society in better shape that they were in coming in to custody. Instead, Bill C-10 would change:

• The Youth Criminal Justice Act. More youth will be detained in custodial centres pending trial, and be subject to adult sentences. Yet, we know that holding at-risk youth in custodial centres only leads to learning or reinforcing criminal tendencies, and when diverted to community options, they are likely to be reformed.
• The Controlled Drugs and Substances Act. A college student in a rental apartment who grows a few marijuana plants to share with friends will be considered a drug trafficking, “grow-op” manager, subject to mandatory incarceration.
• The Criminal Code to remove conditional sentences. The slogan for this proposal was Ending House Arrest for Serious and Violent Criminals Act, but the truth is that these changes make conditional sentences unavailable for minor and property offences too, exactly the type of offences where a conditional sentence may well be the best response. This means offenders will be incarcerated, costing about $100,000 per year, per inmate, when they could have been effectively managed within the community and continued to pay their own way.
• The Corrections and Conditional Release Act. Officials won't have to consider the least restrictive means to discipline and control inmates, or acknowledge that prisoners retain their human rights, regardless. But, almost all prisoners will re-enter society someday, either as neighbours or predators, depending on their experience while in custody.
• The International Transfer of Offenders Act to give broad discretion to Ministers to refuse to allow Canadians convicted of offences in other countries to return to Canada to serve their time. The choice is whether offenders return without being subject to Canadian supervision and likely without even a paper trail, as proposed by Bill C-10, or do their time in Canada's prisons, subject to Canada's treatment programs and supervised release, and with a Canadian record.

Mandatory minimum sentences and no conditional sentences will also increase strains on our justice system, as more people face time in custody and fewer offenders plead guilty, requiring unnecessary trials. But, Courts and Crown prosecutors' offices are already strained to the tipping point. Legal aid plans are stretched very thin and police forces don't have the resources to do their jobs properly. Still people who work in the justice system are generally committed to seeking just results, but that will only become a more complicated, time consuming and difficult challenge after Bill C-10.

The Bill evidences an ongoing antipathy toward judges. Trial judges are paid to hear the evidence, think about who is involved and what's happened, and consider the community situation. They do a good job, given the right options and some flexibility, and when they don't, their decisions can be reversed. This Bill would further tie the hands of judges, so they will have no choice but to incarcerate, even when they realize it will mean an injustice. That's what mandatory minimum sentences are about, no judicial discretion to do what's right in the circumstances. Bill C-10 is full of them.

Bill C-10 will hit the most vulnerable members of our society hardest. When there is no potential for conditional sentences and more mandatory sentences, people in rural and remote northern communities will be shipped far from their families and any supports to serve time in custody, contrary to rehabilitative goals. This is not an unusual situation in Canada. Canada's Aboriginal people already represent up to three quarters of inmates in institutions in the prairies, but only about 13% of the general population. Bill C-10 will make this national embarrassment worse. Judges won't be able to consider a long history of social and economic disadvantage in determining a just outcome, but will, again, be stuck with imposing time in custody.  

The crisis in correctional institutions because of the number of inmates with mental illnesses, or permanent brain injuries like FASD is indisputable. Judges already have too few options, too few resources for health and social service options that could support and treat those people, rather than choosing the more expensive option of warehousing them. But, Bill C-10 will have judges sentence more ill and injured people to time incarcerated.

If how to enhance public safety is the question, this Bill is the wrong answer. It would change Canada's approach to crime at every stage of offenders' interaction with the justice system, from arrest, through trial, to their placement in and treatment by the correctional institutions, to their inevitable reintegration back into society. It represents a profound shift from a system that prioritizes public safety through individualized sentencing, rehabilitation, and reintegration, to one that puts punishment first. That approach will only make us less safe, not more, and drain resources we could have spent wisely on constructive measures that we know reduce crime. CBA says, take another look at Bill C-10.

Editor’s note: for ease of reference, a 10-point summary of the submission has been developed.

Any views expressed in this article are the views of the Chair and do not in any way represent the views of the Nova Scotia Public Prosecution Service.

Daniel A. MacRury, Q.C. is Chair of the CBA National Criminal Justice Section.

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DECEMBER 2011

Editor:
Daniel A. MacRury, Q.C.
E-Publications Editor:
Conrad McCallum
Production:
Rose Steele
Staff Liaison:
Gathoni Njuguna

Contributors:
Suhail Akhtar
James A. Gumpert, Q.C.
Daniel A. MacRury, Q.C.


Published by the Canadian Bar Association's Criminal Justice Section.

The views expressed in the articles contained herein are solely the views of the authors, and do not necessarily represent the views of the Canadian Bar Association.

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