New & Notable: Proctecting the Quasi-Judicial Function of the Crown

In a recent blog, Crown Discretion: Exercising, or is it excising, Crown Discretion, I commented on the issue of whether the Crown's discretionary decision to file notice of increased penalty was part of core prosecutorial discretion. In the recent decision of R v Nixon, 2011 SCC 34 the Supreme Court considered the issue of prosecutorial discretion; while it is considered in a different context, the Court's ruling may shed some light on the likelihood of R v Gill, 2011 ONSC 1145 being upheld or overruled if appealed.
Olga Nixon was charged with a number of offences including dangerous driving causing bodily harm and impaired driving causing bodily harm. It was alleged that Nixon “drove her motor home through an intersection without stopping and struck another vehicle, killing a husband and wife and injuring their young son” [para 2]. Nixon ultimately provided breath samples and registered 200mg of alcohol per 100ml of blood. A toxicologist testified that these results extrapolated to the time of the accident would have been between 225mg and 250mg of alcohol per 100ml of blood [para 2].
Nixon elected to be tried by judge and jury and the case proceeded to a preliminary inquiry. The Assistant Crown Attorney who had carriage of the file had concerns about the admissibility of the evidence and in “particular 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” [para 7]. Based on this analysis of the Crown’s case the results of the breath samples were not adduced at the preliminary hearing and the presiding judge was informed that the Crown would only be seeking committal on the dangerous driving counts; committal on these counts was conceded by Nixon [para 7].
After the preliminary hearing Crown and defence agreed that Nixon would plead guilty to careless driving under the Traffic Safety Act; a joint sentence of an $1800 fine was agreed upon.  Prior to agreeing to this resolution, Crown counsel sought and was granted approval by his immediate supervisor to proceed with the plea to the TSA offence. In light of the seriousness of the allegations a report was prepared and forwarded to senior officials in the justice department. The report caused significant concern to the Acting Assistant Deputy Minister (ADM); an inquiry was commenced and an adjournment of the plea was obtained.  Defence counsel was not informed of the reason for the adjournment.
Ultimately the ADM concluded that the assigned Crown’s assessment was flawed and that the proposed resolution “was contrary to the interests of justice and would bring the administration of justice into disrepute” [para 10]. The assigned Crown was instructed to withdraw the proposed resolution agreement and proceed to trial on the dangerous driving charges in accordance with the outcome of the preliminary hearing.
As a result of this decision, Nixon brought an application under section 7 of the Charter alleging an abuse of process and requesting an order compelling the Crown to honour the proposed resolution. The application judge granted the application and ordered the Crown to proceed with the plea agreement.  Nixon pleaded guilty to careless driving.  The Crown successfully appealed; the acquittals were set aside and a new trial was ordered on the dangerous driving charges.  Nixon appealed to the Supreme Court. 
At the Supreme Court, Charron J, writing for a unanimous Court, first noted that there was agreement between all parties that the Crown's conduct and decision to enter into a plea agreement was part of the "core" discretion [para 29].  The issue, however, was whether the decision to repudiate that deal also fell within this discretion. 
Although it was not agreed by all, Charron J noted that the question of whether the decision to repudiate also fell within the "core" discretion was 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 [emphasis added] [para 30].

It followed, Charron J held, that the decision to repudiate the deal was only reviewable on a showing of abuse of process [para 31].

Turning to that issue, Charron J held that the Crown’s repudiation of the plea agreement did not amount to conduct that was so unfair or oppressive to the accused, or so tainted by bad faith or improper motive, that allowing the Crown to proceed on the Criminal Code charges would tarnish the integrity of the judicial system and thus constitute an abuse of process. 
...the ADM's decision to resile from the plea agreement falls within the scope of prosecutorial discretion. 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. Reasonable counsel may indeed, and often do, differ on whether a particular disposition is in the public interest in the circumstances of the case. The ADM, 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 [para 68].
It is interesting to note in Nixon the decision by the Crown to repudiate its previous deal had the effect of continuing the proceedings.  At the stage that this decision was made, however, there had previously been decisions to commence proceedings, what charges to proceed with and to terminate proceedings by way of a plea agreement.  These previous decisions, Charron J held, did not change the nature of the ADM's decision - it was part of the "core" discretion. 
In the context of filing notice of increased penalty, the Crown has similarly made a decision to commence proceedings and a decision about what charges to proceed with.  However, these previous decisions and the entering of a conviction does not exhaust the Crown's "core" discretionary powers.  One discretionary option open to the Crown is to stay proceedings, even after conviction.  The decision, therefore, to file notice, is a decision about continuing the proceedings.  The fact that it impacts the accused and the court by narrowing the available sentencing options, should not - and does not in my view -change the nature of the decision. 
DG Mack