Let’s (Not) Make a Deal: Supreme Court Gets It Right but Justice Takes the Fall as Crowns Entitled to Break Plea Bargains

A deal’s a deal. Except where lawyers are concerned.

That’s the tough lesson learned by Alberta’s Olga Maria Nixon. Having been involved in a car crash that orphaned and seriously injured a seven-year old boy, Ms. Nixon may not engender a high degree of public sympathy but her legal ordeal set the stage for a very significant precedent handed down by the Supreme Court of Canada (SCC) several weeks ago in R. v. Nixon 2011 SCC 34.

Ms. Nixon was alleged to have driven her motor home though an intersection without stopping striking another vehicle and thus causing the fatalities and injuries. A combination of roadside screening, subsequent breath samples and expert extrapolation suggested that she was well above the legal limit for alcohol consumption at the time of the accident. The trial crown had serious concerns about the admissibility of the breath samples and also questioned the probative value of an eyewitness who claimed to have seen a motor home driving erratically some time before the accident. Following a preliminary inquiry, crown counsel came to an agreement with defence counsel that Ms. Nixon would enter a guilty plea to the vastly reduced charge of careless driving under the Highway Traffic Act with all criminal charges being withdrawn. The crown discussed the general terms of the plea agreement with senior colleagues before confirming it in writing to the defence. Prior to entering the plea, the deal was brought to the attention of the Attorney General’s office who concluded that the crown’s assessment of the weakness of the crown case was flawed. A directive was issued to withdraw the plea agreement and proceed with Ms. Nixon’s prosecution. The issue that wound its way all the way up to the SCC was whether the crown’s exercise of discretion in repudiating the plea agreement was subject to judicial review and, if so, under what terms.

The SCC unanimously held that, while the crown’s decision-making process is subject to judicial review, crowns will only be barred from changing their minds where the defence can establish egregiously unfair and oppressive conduct tainted by bad faith or an improper motive. In short, don’t expect to see too many successful applications that hold the crown’s office to a deal they’ve since soured on.

A careful read of the full text of the case leads me to believe that the SCC arrived at the right legal decision right but I cannot share Justice Charron’s optimism that repudiation of plea agreements by the crown is “a rare and exceptional occurrence.” The evidence before the SCC indicated that repudiation had occurred only twice in the entire breadth of Alberta legal jurisprudence. While anecdotal evidence is a far cry from reliable proof in a court case, my own experience (over a much more limited time span than the life of the Province of Alberta) and my discussions with colleagues, gives me great concern that the instances of repudiation have been dramatically understated.

Moreover, the Court seems to have glossed over the nearly impossible evidentiary barrier it has erected in leaving the door open to judicial intervention only when the defence can demonstrate prosecutorial bad faith and misconduct amounting to an abuse of process. While the crown bears the evidentiary burden to explain its decision to resile from an agreement, that requirement is likely to provide the defence with little ammunition to fight the abuse of process application. To prove such a serious allegation, defence counsel would almost certainly need to have access to confidential crown instructions and / or historical trends demonstrated by other cases – neither of these pieces of evidence are likely to fall easily into defence counsel’s lap.

In the face of these hurdles, savvy defence counsel are strongly cautioned to tread carefully in future plea negotiations with crown counsel. Clients should be advised that, even once an agreement in principle is reached with the crown, that deal cannot be relied upon with certainty until the moment the plea is entered. The most immediate ramification of this decision is likely to be a noticeable spike in the number of lawyers insisting on dealing directly with the senior crown of a particular office. Going ‘straight to the top’ to negotiate a plea bargain may not be the most efficient use of scarce prosecutorial resources but it is the only way for the defence to gain some measure of comfort that hard-won concessions will not be summarily reversed once a senior crown has the opportunity to review the brief. Even this step should not be construed as a guarantee of the strength of the plea bargain as, in Nixon, the senior crown had approved the deal after reviewing the initial crown’s decision only to be overturned later by the Assistant Deputy Minister in the Attorney General’s office.

At the end of the day, it is the crown’s offices themselves that will determine how much damage has been caused by Nixon. If repudiation of plea bargains remains a relatively rare occurrence happening only in the clearest of cases it is not likely to have a dramatic chilling effect on pre-trial resolutions. On the other hand, should crown offices feel emboldened by the unanimous verdict of the SCC to expand the number of plea bargains that are repudiated upon senior review, the effects of such behaviour are likely to be far-reaching and severe.