“If the decision to repudiate a plea agreement remains within the core discretion of the attorney general, then there will be a situation where many Crowns will simply not provide reasons, and the accused in most cases will be stuck with the decision largely because most accused won’t have the resources to pursue it any further,” says D’Arcy DePoe, who represented the Criminal Trial Lawyers’ Association as intervener in R v. Nixon.
The controversial decision released today follows an incident that occurred in September 2006, when Olga Nixon drove her motorhome into an intersection and hit another vehicle, killing a couple and injuring their son. Nixon faced charges including dangerous driving causing death, dangerous driving causing bodily harm, and impaired driving.
She agreed to a plea deal that would have seen her plead guilty to careless driving, along with a joint sentence recommendation for a $1,800 fine. But that deal collapsed after the acting assistant deputy minister of the Criminal Justice Division of Alberta’s Office of the Attorney General decided the resolution would put the administration of justice into disrepute.
Crown counsel was told to withdraw the plea deal and go to trial on the matter. That move prompted Nixon to bring a s. 7 Charter application based on allegations of abuse of process, and sought to force the Crown to follow through with the deal.
The trial judge backed Nixon, but the Alberta Court of Appeal disagreed, ruling that prosecutorial discretion makes way for the withdrawal of plea agreements, and is not reviewable by the courts.
The Supreme Court backed the appeal court’s ruling, noting that the issue was addressed in the 2002 case Krieger v. Law Society of Alberta. That case essentially says acts of prosecutorial discretion are reviewable only on abuse of process, which the SCC said didn’t apply in Nixon.
“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,” wrote Justice Louise Charron on behalf of the court.
“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.”
But the court also stressed that plea deals cannot be “overturned on a whim.” Wrote Charron: “The method by which the decision was reached can itself reveal misconduct of a sufficient degree to amount to abuse of process. But that is not what occurred here. The act of repudiation was indeed a rare and exceptional occurrence. The evidence revealed that there have been only two prior occurrences in Alberta . . . . There was also no evidence of abusive conduct in the process leading to the decision to repudiate.”
Nevertheless, DePoe says it would have been more equitable for the top court to put the onus on the Crown to justify its repudiation of a plea deal by laying out public-policy grounds in open court.
“I would have thought it was not unreasonable for the average citizen to expect that the attorney general and their agents would keep their word,” he says. “This doesn’t happen as rarely as the Supreme Court says it does.”