On June 24, 2011, the Supreme Court of Canada released its unanimous decision in R v. Nixon (2011 SCC 34). This decision holds that Crown prosecutors may, in certain circumstances, repudiate plea agreements as those agreements fall within the realm of prosecutorial discretion. This decision could have a significant impact on how plea agreements are approached moving forward and the accused’s ability to rely on such agreements.

THE CASE

At issue in this case was a plea agreement between the Crown and the Appellant, Ms. Olga Nixon. Ms. Nixon had been charged with multiple Criminal Code offenses, including dangerous driving and impaired driving, following an incident where she was alleged to have driven a motor home through an intersection, striking a second vehicle and killing two of the three passengers in it. Feeling his evidence would not support a conviction, the Crown counsel entered into a plea agreement with Ms. Nixon that reduced the charges to regulatory offences and recommended only a $1,800 fine. This decision caught the eye of the counsel’s superiors, who reviewed the decision and instructed the agreement be repudiated and trial be pursued.

In arriving at its ultimate decision that the repudiation was acceptable, the Court reached four conclusions:  

  1. The repudiation of a plea agreement falls within the scope of prosecutorial discretion and is therefore only subject to judicial review for abuse of process.  
  2. Abuse of process reviews should only be conducted when the evidentiary foundation is proper, meeting the necessary threshold.  
  3. Evidence a plea agreement has been repudiated by the Crown meets that threshold.  
  4. To find the repudiation was an abuse of process the repudiation must either result in prejudice undermining trial fairness or undermine society’s expectations of fairness in the administration of justice.  

Taken together, this means that repudiating a plea agreement, though subject to judicial review, would be acceptable short of undermining trial fairness or the administration of justice.

REPUDIATION IS PROSECUTORIAL DISCRETION SUBJECT TO REVIEW FOR ABUSE OF PROCESS

In defining the scope of prosecutorial discretion, the Court held prosecutorial discretion to encompass the decision as to whether a prosecution should be brought, continued or ceased. Further, that decision making process does not terminate when a plea agreement is formed but continues as long as proceedings are ongoing and the Crown may be required to make decisions as to the prosecution’s continuation. In this light, the Crown’s decision to repudiate a plea agreement and proceed with prosecution fits safely within the scope of prosecutorial discretion.  

As an exercise of prosecutorial discretion, a decision to repudiate can only be subject to judicial review for abuse of process. To allow review on other grounds would be to blur the line between the Crown and the judiciary, a separation that is essential to the Canadian justice system.  

ABUSE OF PROCESS, REPUDIATIONS AND THE EVIDENTIARY THRESHOLD

The Supreme Court held that a court should only conduct a review of an act of prosecutorial discretion when a proper evidentiary foundation exists. If such an evidentiary foundation is present, then the “threshold” to review the decision exists. Decisions to repudiate a plea agreement, however, will always cross this threshold.  

Plea agreements are essential to the proper and fair administration of criminal justice, ensuring they are honoured is essential. Repudiation itself is concrete evidence of the Crown going back on its word. Judicial review is thus necessary to limit repudiations to those situations where they are appropriate. Review precludes arbitrary repudiations that have no regard to resulting prejudice to the accused or situations where there is a systematic problem with Crown counsel in a particular jurisdiction.

THE DETERMINATION OF ABUSE OF PROCESS

Having determined repudiations are subject to review, the Court turns to the central issue: what will constitute an abuse of process and preclude the Crown from repudiating the plea agreement? There are, traditionally, two forms of abuse of process in Canadian law: (1) abuse of process where the fairness of the accused’s trial is at issue and (2) abuse of process that undermines society’s expectations of fairness in the administration of justice.  

In Ms. Nixon’s case the Court found no examples of the first kind of abuse. At the time of repudiation, the Crown’s office chose to proceed only with those charges it had chosen to proceed with prior to the agreement. Ms. Nixon’s position following the repudiation was, therefore, the same as before the agreement was formed. With no evidence demonstrating her trial would be unfair, no prejudice could be found.

For the second kind of abuse of process the Court looked to the circumstances surrounding the Crown’s decision including evidence of political interference, bad faith, the accommodation of a political stance or anything improper in the factors considered in making the decision. The Court found, based on the trial judge’s decision, none of these factors were present. The decision to repudiate was ultimately based on considerations of fairness and the administration of justice.

Though there may be some burden on the Crown to explain its decision, that decision is discretionary and the ultimate burden lies with the accused to prove the decision was an abuse. Ms. Nixon failed to do so. Without such evidence, the Crown’s decision to repudiate was an acceptable exercise of prosecutorial discretion.

POTENTIAL IMPLICATIONS LOOKING FORWARD

By allowing Crown prosecutors to repudiate plea agreements, the Court has potentially created a situation where those agreements could lose some legitimacy. The Court itself acknowledges that plea agreements are a practical necessity in the criminal justice system. Agreements allow the speedy resolution of a great number of criminal cases, leaving resources available for the most essential and significant cases. Repudiation undermines this not only by precluding a potentially speedy resolution, but were repudiation common it would be difficult for an accused to rely on agreements and they would potentially need to proceed as if the agreement may be repudiated at any time; efficiency and fairness would be endangered.  

For the Court, however, the importance of prosecutorial discretion means repudiation must at least be possible. The Court repeatedly stated throughout the decision that repudiation cannot occur on a whim, and that such acts will only occur in rare and exceptional circumstances.

The Court, then, sees the strict standards of abuse of process as a means of ensuring balance is achieved between the public interest and the importance of plea agreements. How effective the test outlined in this case is, however, remains to be seen. Unless it results in prejudice against the fairness of the accused’s trial or undermines the integrity of the judicial process, a decision to repudiate is an internal one. The ability of the accused to prove the impropriety of that internal Crown decision, even in instances of abuse of process, may be limited. Judicial review may be easily granted given repudiation meets the threshold, but an ultimate finding of abuse of process is much more difficult.