R. v. Nixon (O.), (2011) 417 N.R. 274 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 15, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2011), 417 N.R. 274 (SCC);2011 SCC 34;85 CR (6th) 1;271 CCC (3d) 36;502 AR 18;[2011] EXP 2036;95 WCB (2d) 754;[2011] 7 WWR 429;JE 2011-1113;335 DLR (4th) 565;41 Alta LR (5th) 221;417 NR 274;EYB 2011-192222;[2011] 2 SCR 566;[2011] SCJ No 34 (QL);237 CRR (2d) 333;13 MVR (6th) 1

R. v. Nixon (O.) (2011), 417 N.R. 274 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2011] N.R. TBEd. JN.023

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) (intervenors)

(33476; 2011 SCC 34; 2011 CSC 34)

Indexed As: R. v. Nixon (O.)

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

June 24, 2011.

Summary:

The accused was charged with driving while having an excessive blood-alcohol level, two counts of impaired driving causing death, one count of impaired driving causing bodily harm and parallel counts of dangerous driving causing death and causing bodily harm. During the course of the preliminary inquiry, the Crown counsel advised the presiding judge that he would not be seeking an order to stand trial on any but the dangerous driving counts and that the accused would consent to that disposition of the inquiry. Subsequently, the Crown counsel made a written offer to accept a guilty plea to careless driving under the Traffic Safety Act with a joint sentence recommendation for a $1,800 fine. The accused accepted the offer and arrangements were made for the accused to re-elect trial in the Provincial Court. The Acting Assistant Deputy Minister became concerned by the proposed disposition and initiated an inquiry into the circumstances surrounding the agreement. Thereafter, the Assistant Deputy Minister decided to repudiate the agreement and proceed to trial. After making a formal re-election to the Provincial Court, the accused applied to enforce the agreement, asserting that the Crown's repudiation of the agreement constituted an abuse of process which resulted in a breach of her s. 7 Charter rights.

The Alberta Provincial Court, in a decision reported at 445 A.R. 111, allowed the application and directed the Crown to honour the agreement. The court directed that the matter proceed before another court so that a plea to careless driving could be entered and a sentence imposed. The presiding judge recused himself from presiding at that hearing. The accused pleaded guilty to careless driving.

The Alberta Provincial Court sentenced the accused to a $1,800 fine and acquitted her on the remaining counts. The Crown appealed.

The Alberta Court of Appeal, in a decision reported at 464 A.R. 1; 467 W.A.C. 1, allowed the appeal and set aside the accused's guilty plea and the acquittals. The accused appealed.

The Supreme Court of Canada dismissed the appeal.

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - The Supreme Court of Canada reviewed the distinction between prosecutorial discretion reviewable only for abuse of process and tactics or conduct governed by the inherent jurisdiction of the criminal trial court to control its own process - See paragraphs 18 to 21.

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - The Supreme Court of Canada reviewed the common law doctrine of abuse of process and its merger with s. 7 of Charter - The court stated that in determining what constituted a violation of s. 7, it was important to recall what kind of harm the common law doctrine was intended to address and, in turn, why that degree of harm called for a stay of proceedings as the appropriate remedy - While s. 24(1) of the Charter allowed for a wide range of remedies, that did not mean that abuse of process could 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 defined the essential character of abuse of process - The court also reviewed the two categories of abuse of process which would be caught by s. 7: (1) prosecutorial conduct affecting trial fairness and (2) prosecutorial conduct that contravened fundamental notions of justice and thus undermined the integrity of the judicial process - With both categories, a stay of proceedings was only appropriate when "(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice" - See paragraphs 33 to 43.

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - The Supreme Court of Canada stated that an accused's assertion that a plea agreement should be regarded as a contractual undertaking and enforced just as any other lawyers' undertaking could not be sustained - It completely ignored a plea agreement's public dimension - Vitiating factors, such as mistake, misrepresentation or fraud, which usually informed a private party's right to resile from a bargain, did not fully capture the public interest considerations which were at play in any decision to repudiate a plea agreement - A plea agreement could not be summarily enforced by the court as any other undertaking - It was also wrong to suggest that repudiation, in and of itself, warranted a judicial remedy even in the absence of prejudice or in the absence of conduct amounting to an abuse of process - However, to the extent that the lawyers' undertaking analogy underscored the importance of honouring plea agreements, it could usefully contribute to the analysis of determining whether a repudiation of a plea agreement constituted an abuse of process in breach of an accused's s. 7 Charter rights - The court discussed the importance of honouring resolution agreements - See paragraphs 44 to 49.

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - The Supreme Court of Canada stated that "The repudiation of a plea agreement is a rare and exceptional event. In my view, evidence that a plea agreement was entered into with the Crown, and subsequently reneged by the Crown, provides the requisite evidentiary threshold to embark on a review of the decision for abuse of process. 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. That is, the Crown must explain why and how it made the decision not to honour the plea agreement. The ultimate burden of proving abuse of process remains on the applicant and, as discussed earlier, the test is a stringent one. However, if the Crown provides little or no explanation to the court, this factor should weigh heavily in favour of the applicant in successfully making out an abuse of process claim." - See paragraph 63.

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - The accused was charged with seven serious offences arising out of a motor vehicle accident - Crown counsel (Hatch) and the accused entered into an agreement under which the Crown was to accept a guilty plea to careless driving under the Traffic Safety Act with a joint sentence recommendation for a $1,800 fine - The Assistant Deputy Minister (ADM) repudiated the agreement - The accused applied to enforce the agreement, asserting that the repudiation constituted an abuse of process breaching her s. 7 Charter rights - The trial judge allowed the application - The Alberta Court of Appeal allowed an appeal - The trial judge erred in reviewing Hatch's decision to enter into the plea agreement to see if it was reasonably defensible - He should have reviewed the circumstances surrounding the ADM's decision to repudiate - It was not the court's role to second-guess the Attorney General or the prosecutor or to determine whether their prosecutorial discretion was correctly exercised - Due regard to the Crown's constitutional role demanded a deferential standard of review - The relevant inquiry was whether the method used, the conduct involved, or the considerations that informed the making of the decision amounted to an abuse of process, i.e., was there proof of prosecutorial misconduct, improper motive or bad faith in the approach, circumstances or ultimate decision to repudiate - The trial judge's conclusion that the decision to repudiate was not motivated by improper (or political) considerations or made in bad faith was supported by the evidence - The accused provided no evidence of "flagrant impropriety", or of "improper motives, bad faith or an act so wrong that it violated the conscience of the community" - The ADM carefully reviewed the evidence and relied on legal opinions and took guidance from the Ontario Attorney General's policy to instruct himself on the relevant considerations - Having satisfied himself that Hatch's original view was incorrect and that the resulting plea agreement would bring the administration of justice into disrepute, he acted expeditiously in communicating the decision to repudiate to the accused - He also considered the possible prejudice to the accused and concluded that there would be none - The ADM's conduct, viewed in its totality, could not be characterized as unfair, unreasonable, oppressive or irrational - The Supreme Court of Canada affirmed the Court of Appeal's decision - See paragraphs 50 to 70.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See second Civil Rights - Topic 3157.4 ].

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process - [See first Civil Rights - Topic 3157.4 ].

Criminal Law - Topic 26

General principles - Prosecution of crime - Prosecutorial discretion - [See first and fifth Civil Rights - Topic 3157.4 ].

Criminal Law - Topic 26

General principles - Prosecution of crime - Prosecutorial discretion - A trial judge concluded that the Attorney General's decision to withdraw a plea resolution agreement was one of tactics or conduct before the court and fell outside the realm of prosecutorial discretion - The Crown appealed, asserting, inter alia, that the trial judge mischaracterized the plea agreement as being akin to an undertaking - The accused asserted that the plea agreement should be characterized as a contract entered into by Crown agents on the Attorney General's behalf - The Alberta Court of Appeal agreed with the Crown - The Supreme Court of Canada agreed with the Court of Appeal - To the extent that the trial judge's analysis suggested that anything occurring after the charges were laid fell outside the scope of prosecutorial discretion, it could not be sustained - If the line were to be drawn at the point when the discretion was exercised in favour of proceeding, the Crown'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 et al. v. Law Society of Alberta (S.C.C.) - As stated by the Court of Appeal, that line would effectively neuter some of the primary purposes of prosecutorial discretion - Also, as stated by the Court of Appeal, in determining whether any impugned decision fell within the core of prosecutorial discretion, it was 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?" - Applying that test, the Court of Appeal correctly found that the decision to repudiate the plea agreement "fell squarely within the core elements 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 were ongoing, the Crown might be required to make further decisions about whether the prosecution should be continued and, if so, in respect of what charges - The Crown's ultimate decision to resile from the plea agreement and to continue the prosecution was subject to the principles set out in Krieger - It was only subject to judicial review for abuse of process - See paragraphs 29 to 32.

Criminal Law - Topic 251

Abuse of process - General principles - [See second Civil Rights - Topic 3157.4 ].

Criminal Law - Topic 4231

Procedure - Pleas - Plea bargaining - [See third, fourth and fifth Civil Rights - Topic 3157.4 and second Criminal Law - Topic 26 ].

Criminal Law - Topic 5813

Sentencing - Sentencing procedure and rights of the accused - Plea bargain or joint submission - Effect of - [See fifth Civil Rights - Topic 3157.4 ].

Cases Noticed:

Krieger et al. v. Law Society of Alberta, [2002] 3 S.C.R. 372; 293 N.R. 201; 312 A.R. 275; 281 W.A.C. 275; 2002 SCC 65, refd to. [para. 11].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159, refd to. [para. 33].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 36].

R. v. Keyowski, [1988] 1 S.C.R. 657; 83 N.R. 296; 65 Sask.R. 122, refd to. [para. 39].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165, refd to. [para. 41].

Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81, refd to. [para. 42].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 42].

R. v. Pires - see R. v. Lising (R.) et al.

R. v. Lising (R.) et al., [2005] 3 S.C.R. 343; 341 N.R. 1; 217 B.C.A.C 65; 358 W.A.C. 65; 2005 SCC 66, refd to. [para. 61].

R. v. M.(R.N.-Z.) - see R. v. R.N.-Z.M. et al.

R. v. R.N.-Z.M. et al., [2006] O.T.C. 842; 83 O.R.(3d) 349 (Sup. Ct.), refd to. [para. 67].

Authors and Works Noticed:

Law Society of Alberta, Code of Professional Conduct, Version No. 2009_VI (June 3, 2009) (online: http://www.lawsociety. ab. ca/files/regulations/Code.pdf), rule 27 [para. 44].

Martin Committee Report - see Ontario, Attorney General, Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions, Report of.

Ontario (Attorney General), Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions, Report of (Martin Committee Report) (1993), Commentary to Recommendation 53, pp. 312, 313 [para. 46]; 314 [para. 49].

Counsel:

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 intervenor, the Attorney General of Ontario;

Ami Kotler, for the intervenor, the Attorney General of Manitoba;

M. Joyce DeWitt-Van Oosten, Q.C., for the intervenor, the Attorney General of British Columbia;

D'Arcy DePoe, for the intervenor, the Criminal Trial Lawyers' Association;

Marie Henein, Matthew Gourlay and Lou Strezos, for the intervenor, the Criminal Lawyers' Association (Ontario).

Solicitors of Record:

Beresh Cunningham Aloneissi O'Neill Hurley, Edmonton, Alberta, for the appellant;

Attorney General of Alberta, Calgary, Alberta, for the respondent;

Attorney General of Ontario, Toronto, Ontario, for the intervenor, the Attorney General of Ontario;

Attorney General of Manitoba, Winnipeg, Manitoba, for the intervenor, the Attorney General of Manitoba;

Attorney General of British Columbia, Victoria, B.C., for the intervenor, the Attorney General of British Columbia;

Fleming DePoe Lieslar, Edmonton, Alberta, for the intervenor, the Criminal Trial Lawyers' Association;

Henein & Associate, Toronto, Ontario, for the intervenor, the Criminal Lawyers' Association (Ontario).

This appeal was heard on December 15, 2010, by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. Charron, J., delivered reasons for judgment of the court in both official languages on June 24, 2011.