Case: R. v. Delchev, 2015 ONCA 381

Keywords: Crown settlement offer, abuse of process, privilege, stay

Synopsis: The appellant was convicted of 16 counts of firearms and drug related offences following a trial by judge and jury. In settlement discussions, trial Crown had offered to recommend a conditional sentence on a guilty plea “if the appellant provided an induced statement indicating certain evidence he had given in pre-trial proceedings was false and his trial counsel knew it was false”. If the offer was accepted it would create a conflict of interest between the appellant and his counsel.

Following the offer, the appellant brought an abuse of process application seeking a stay. The trial judge held that “because settlement privilege applied, and there was no extrinsic evidence supporting an exception based on prosecutorial impropriety, the evidence of the discussion was inadmissible”. She dismissed the application. The Court of Appeal allowed the appeal. The Court held that the trial judge erred in not admitting the evidence of the offer as an exception to settlement privilege. The appellant met the evidentiary burden for an inquiry into Crown discretion. The Court ordered a new trial.

Importance: Recently the Supreme Court of Canada in R. v. Anderson, 2014 SCC 41 at para. 44 described prosecutorial discretion as “an expansive term that covers all decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it”. Crown discretion is generally treated as sacrosanct, but in rare and exceptional cases a court will look into the reasons behind the exercise of discretion. In the present case, the Court of Appeal reviews the special relationship between accused and defence counsel and the role of the Crown. It then explains why the Crown’s offer potentially interferes with that relationship and concludes that the “rare and exceptional” test was met.

Before a court will review prosecutorial discretion, an accused must meet a threshold evidentiary burden. Once the evidentiary foundation is established, the Crown may be required to provide reasons justifying its decision. The trial judge below held that extrinsic evidence of prosecutorial misconduct was required to establish an exception to settlement privilege. The Court of Appeal disagreed:

While it is clear from Nixon that a “bare allegation” on its own will not meet the requisite threshold, it does not follow that an accused must produce extrinsic evidence (i.e. evidence extrinsic from the settlement offer itself) in order to meet the burden. A requirement for extrinsic evidence would be irreconcilable with the Supreme Court’s conclusion in Nixon that repudiation of a plea agreement in and of itself is not a bare allegation and meets the evidentiary burden. The impugned act of prosecutorial discretion may be sufficient on its own to meet the threshold burden.

The SCC in Nixon held that the evidentiary threshold may also be met where a discretionary decision is so rare and exceptional in nature that it demands an explanation. The Court of Appeal in the present case noted that this does not simply mean a decision that is infrequently made. Instead, “a Crown discretionary decision may qualify as a rare and exceptional event when the decision itself raises the court’s concern about the Crown’s exercise of discretion.” Further, the Crown’s decision must implicate interests that go to the proper and fair administration of justice. Once the threshold is met, the Crown has an opportunity to explain the reasons behind its exercise of discretion. The accused has the burden to establish an abuse of process on a balance of probabilities.

Applying these principles in the present case, the Court of Appeal found that the appellant met the evidentiary threshold on the basis of the offer being a “rare and exceptional event”. The offer had the potential to negatively affect the relationship between the appellant and his lawyers. In that regard it cited the late Edward Greenspan, Q.C. on the role of defence counsel:

No person is required to stand alone against the awesome power of the government. Rather, every criminal defendant is guaranteed an advocate – a “champion” against a “hostile world”, the “single voice on which he must rely with confidence that his interest will be protected to the fullest extent consistent with the rules of procedure and the standards of professional conduct.”

And the role of the defence counsel, the obligation the community places on him, is a societal role – to defend the constitutional guarantees of the presumption of innocence and the requirement that in our democracy no one can lose freedom unless and until the state can prove guilt beyond a reasonable doubt. Our community can retain justice and freedom only as long as it gives standing to one person to take, within the limits of the law, the defendant’s side in court and to remind society when the scales of justice are tilting in the wrong direction. [Edward Greenspan, Q.C., “The Role of the Defence Counsel in Canadian Society” (The 1987 Empire Club of Canada Foundation Address, 19 November 1987).]

With respect to the Crown, the Court stated that the function of the Crown is to be “assistant to the Court in the furtherance of justice, and not to act as counsel for any particular person or party”: Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16, at p. 25. The Crown’s dual role as both advocate and minister of justice is essential to the administration of justice.

Given the language used by the Court of the Appeal, it is clear that prosecutorial discretion not being subject to review by the courts remains the norm. However, the decision exposes one area of vulnerability in prosecutorial discretion, namely where an offer may amount to an abuse of process. This decision should serve to put defence and the Crown on alert for potentially offending settlement offers.

Counsel for the Respondent: Susan Magotiaux (Attorney General of Ontario, Toronto)

Counsel for the Appellant: Jill Presser and Andrew Menchynski (Presser Barristers, Toronto)

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