3.7 Resolution Discussions

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

March 1, 2014

1. Introduction
2. Principles Guiding Resolution Discussions
- 2.1. Openness
- 2.2. Fairness
3. Types of Resolution Discussions
4. Judicial Pre-Trial Conferences
5. Delegated Authority to Prosecute

1. Introduction

Discussions between Crown and defence counsel which are intended to lead to a narrowing of the issues at trial, or which may avoid litigation altogether, form an important and necessary part of the criminal justice system.^{Footnote 1} In fact, the vast majority of cases never go to trial; rather they are resolved by way of a guilty plea to the charges laid or a guilty plea to a lesser offence. In most cases, these outcomes flow from discussions between Crown and defence counsel regarding the evidence, possible defences, Canadian Charter of Rights and Freedoms issues, and other matters regarding the likelihood of a conviction. Discussions of this nature are often referred to as “resolution discussions.” Though not defined in the Criminal Code, resolution discussions embrace a diversity of practices other than that just described: how the case may proceed, what an appropriate sentence might be, what the facts of the offence are for the purposes of a guilty plea, and, if the case is to proceed to trial, how the issues might be narrowed so as to expedite the trial. Early and meaningful resolution discussions can benefit all participants in the criminal justice system and advance the administration of justice. Crown counsel are encouraged to initiate resolution discussions, and in so doing they should agree to present a joint submission as to the exact length of sentence or amount of monetary fine only where satisfied that a joint submission is appropriate in the public interest and, in particular, will not bring that administration of justice into disrepute. Crown counsel should advise the court of the factors underlying the joint submission so that the basis of the decision to agree to a joint submission is readily understood by the court and members of the public.

Crown counsel are to make their best efforts to reach agreements on such issues as early as possible in the case. It must be emphasized, however, that any joint sentencing recommendations made to the court as part of a resolution discussion are subject to the overriding discretion of the court to accept or reject any submission by counsel.^{Footnote 2} When a sentencing judge indicates he or she is disinclined to follow a joint submission on sentence or is considering imposing a sentence outside the range proposed by counsel, Crown counsel should ensure the judge gives counsel an opportunity to make further submissions before pronouncing on sentence.^{Footnote 3}

Although resolution discussion practices may vary from jurisdiction to jurisdiction, the underlying guiding principles remain the same. This guideline is intended to give Crown counsel guidance on how to engage in meaningful discussions. The PPSC Deskbook guidelines covering specific types of prosecutions, and confidential legal memoranda must also be taken into account.^{Footnote 4} In addition, Crown counsel must be alert to the availability of such options as alternative measures programs and restorative or community justice processes.^{Footnote 5}

2. Principles Guiding Resolution Discussions

The unique role of Crown counsel as both advocate and minister of justice means that they must represent the interests of the Crown as knowledgeable and effective negotiators while ensuring that the accused is treated fairly and according to the law.^{Footnote 6} Resolution discussions must be based on the principles of openness and fairness, and must always be conducted in the public interest in the effective and consistent enforcement of the criminal law.

2.1. Openness

One of the more serious criticisms of plea bargaining in its early days pertained to the secrecy of the process and the related concern regarding “private deals” between counsel, subsequently ratified by the judiciary, engendering public suspicion and cynicism.^{Footnote 7} The principle of openness stems from the concept that “fair and rational decisions are more likely to be perceived as fair and rational if their origins and underpinnings have been fully disclosed”.^{Footnote 8} It involves at least two components: (i) canvassing, where appropriate, the views of certain interested parties regarding a proposed resolution and (ii) upholding the open court principle.

When reasonably possible, Crown counsel should solicit and weigh the views of those involved in the Crown's case - in particular, the victim (where there is one), the community where appropriate^{Footnote 9} and the investigating agency. In some cases, consultation may be warranted with the relevant provincial prosecuting service or with a Department of Justice legal service unit.^{Footnote 10} However, after consultation, the final responsibility for assessing the appropriateness of a plea agreement rests with Crown counsel.^{Footnote 11} If a plea agreement is reached, counsel should make reasonable efforts to ensure that victims and investigating agencies understand the substance of the agreement and the reasoning behind it. The scope of this discussion may, in certain circumstances, be limited by privacy or secrecy considerations, in the accused's interest or in the general public interest.^{Footnote 12}

Where a plea or sentence agreement has been reached, counsel should present the proposal to the trial judge in open court and on the record. In certain circumstances, it may be necessary to discuss some aspects of the agreement with the trial judge privately in the presence of defence counsel.^{Footnote 13} This should be done only in those rare situations involving facts which in the interest of the public or the accused ought not to be disclosed publicly. Examples include cases where the accused is terminally ill or is cooperating with investigators. It is not acceptable, however, to discuss a plea agreement privately with the trial judge in advance of the hearing to determine the court's reaction to it.^{Footnote 14}

Crown counsel should maintain a complete signed and dated written record on the file of all resolution issues discussed, offers made or agreements reached.^{Footnote 15} This will promote a consistent and informed practice, particularly where multiple Crown counsel successively handle a file.

2.2. Fairness

An effective resolution discussions system is premised upon the integrity with which the justice system participants operate.^{Footnote 16} Unfair plea bargaining practices lead to results that are contrary to the administration of justice.

Fairness means that the accused ideally should have received core disclosure prior to plea bargaining so that the parties are on equal footing. However, the practical realities of plea negotiations between Crown and defence counsel, in particular where defence counsel indicates his or client wishes to enter an early plea, are such that it may not be reasonably feasible to complete disclosure prior to entering a plea. In such cases, Crown counsel should ask that the accused, through defence counsel, indicate on the record that they waived their right to disclosure. Crown counsel should not conduct plea or sentence discussions with an unrepresented accused unless satisfied that the accused has been given full disclosure or is aware of the right to full disclosure and has clearly waived it.^{Footnote 17} Any such waivers should be indicated on the court record at the time of entering the plea.

Crown counsel may not proceed with a resolution agreement where the charge approval standard set out in the PPSC Deskbook guideline “2.3 Decision to Prosecute”^{Footnote 18} cannot be met.^{Footnote 19} If the case does not meet this standard, charges are to be withdrawn or stayed.

Fairness also means that the Crown should honour all negotiated plea or sentence agreements unless fulfilling the agreement^{Footnote 20} would clearly be contrary to the public interest.^{Footnote 21} Additionally, while they should not disregard the position that another colleague previously communicated on the file, Crown counsel may be justified in repudiating an agreement if misled about material facts. The decision not to fulfill an agreement should be made only after consultation with, and approval of, the Chief Federal Prosecutor (CFP) and the appropriate Deputy Director of Public Prosecutions (Deputy DPP). As well, if counsel disagrees with an agreement reached earlier by a colleague, the matter should be referred to the CFP and then to the appropriate Deputy DPP, unless the disagreement stems from a material change in facts. In all cases where a plea resolution is repudiated, the reasons for repudiation must be well-documented on the file. Crown counsel should inform defence counsel in writing of the reasons for the repudiation.

If an accused enters a plea based on a negotiated plea or sentence agreement and the court disposes of the case on those terms, the Crown may not undertake an appeal unless exceptional circumstances exist^{Footnote 22} and a Deputy DPP authorizes the appeal in light of the recommendation of the CFP.

3. Types of Resolution Discussions

3.1. Unrepresented accused

Plea or sentence negotiations with an unrepresented accused call for extreme care. Crown counsel may inform an unrepresented accused person of the Crown’s initial position on sentence in the event of a guilty plea. However, Crown counsel may not advise the accused on whether or not to accept the Crown’s offer. Any such discussions can proceed only where Crown counsel is satisfied that the accused is acting voluntarily.^{Footnote 23} Moreover, in entering into any plea discussions, Crown counsel, must not take advantage of the fact that the accused is unrepresented by counsel.

Crown counsel should first inform the accused of his or her right to retain counsel and, where appropriate, advise the accused of the availability of legal aid. If there are any concerns about the accused’s understanding or ability to understand the extent of his or her jeopardy and the right to counsel, Crown counsel may need to take additional steps and encourage the accused to consult with counsel. If the accused declines to retain counsel, Crown counsel should generally arrange for a third person to be present as a witness during discussions because of the need to maintain an arms-length relationship with the accused. Crown counsel should follow the local practices in their region to mitigate the risks in respect of dealings with unrepresented accused. Depending on local practice, it may be advisable for Crown counsel to consult duty counsel regarding the unrepresented accused person’s matter. It is especially crucial in these cases to keep on file a detailed written record of all discussions. In most instances, a written agreement or written evidence of an agreement^{Footnote 24} will be appropriate. When the case is disposed of in accordance with a negotiated plea or sentence agreement, Crown counsel should tell the judge about the existence of the agreement and that the accused was encouraged to retain counsel but declined to do so. Crown counsel should also recommend to the presiding judge holding a plea comprehension hearing.

3.2. Charge discussions

Charge discussions may properly cover the following topics:

reducing a charge to a lesser or included offence;^{Footnote 25}
withdrawing or staying other charges;
agreeing not to proceed on a charge or agreeing to stay or withdraw charges against others (for example, friends or family of the accused);
agreeing to reduce multiple charges to one all-inclusive charge (where permitted by law); and
in agreeing to stay certain counts and proceed on others, relying on the material facts that supported the stayed counts as aggravating factors for sentencing purposes.^{Footnote 26}

The following practices are not acceptable in the context of charge discussions:

instructing or proceeding with unnecessary additional charges to secure a negotiated plea;
agreeing to a plea of guilty to an offence not disclosed by the evidence;
agreeing to a plea of guilty to a charge that inadequately reflects the gravity of the accused's provable conduct unless, in exceptional circumstances, the plea is justifiable in terms of the benefit that will accrue to the administration of justice;
agreeing to a plea of guilty to a charge to a lesser or included offence for the purpose of avoiding mandatory minimum penalties [MMPs]
negotiating plea agreements that involve other government departments’ administrative or enforcement processes (for example, Canada Revenue Agency) without their consultation with respect to the proposed resolution; or
negotiating plea agreements with defence counsel representing multiple co-accused where there is reason to believe that he or she is in a conflict of interest.

3.3. Procedural discussions

Procedural discussions may properly include the following:

agreeing to proceed summarily instead of by indictment;^{Footnote 27}
agreeing to dispose of the case at a specified future date if, on the record and in open court, the accused indicates that he or she is prepared to waive the right to a trial within a reasonable time; and
agreeing to the waiver of charges to or from another province or territory, or to or from another judicial district within a province or territory.^{Footnote 28}

3.4. Sentence discussions

Crown counsel may engage in sentence negotiations where:

the accused is willing to acknowledge guilt unequivocally; and
the consent of the accused to plead guilty is both voluntary and informed.^{Footnote 29}

Each case must be resolved on its merits in a manner that is fit and just. An agreed-upon resolution should not adversely affect the investigation or prosecution of others. For example, an agreement as to sentence ought not to be so low that it makes what is an otherwise fit sentence for a co-accused a violation of the disparity principle.^{Footnote 30} Moreover, sentence agreements can never bind investigators in respect of future investigations.

Crown counsel shall also consider the sentencing principles set out in ss. 718-718.21 of the Criminal Code.

3.4.1. Scope of sentence discussions

Sentence discussions may properly include the following:

an undertaking by Crown counsel to recommend a certain range of sentence or a specific sentence;
a joint recommendation for a range of sentence or for a specific sentence;
an agreement by Crown counsel not to oppose a sentence recommendation by defence counsel which has been disclosed in advance;^{Footnote 31}
an agreement by Crown counsel not to seek additional optional sentencing measures. However, Crown counsel cannot negotiate in this manner in respect of sentencing measures which apply by operation of law,^{Footnote 32} nor may they waive the right to seek forfeiture orders or prohibition orders in order to obtain a resolution agreement without prior approval of their CFP or Associate CFP;^{Footnote 33}
an agreement regarding the filing of a notice of intention to seek greater punishment, that is made in accordance with the PPSC Deskbook guidelines on impaired driving cases and on other offences for which there are mandatory minimum penalties;^{Footnote 34}
an agreement by Crown counsel not to oppose the imposition of an intermittent sentence rather than a continuous sentence;
an agreement regarding the type of conditions to be imposed on a conditional sentence; and
consideration of alternative resolutions, including community justice processes (for example, circle sentencing), in accordance with the PPSC Deskbook directive “3.8 Alternative Measures”.^{Footnote 35}

The following practice is not acceptable:

a promise in advance not to appeal the sentence imposed at trial.

3.4.2. Conduct of sentence discussions

The following principles should inform Crown counsel’s approach to sentence negotiation:

Because of the benefits that flow to the administration of justice from early guilty pleas, Crown counsel should make, as soon as practicable, a time-limited offer. This offer should reflect the fact that generally a plea of guilty is a mitigating factor on sentence, especially where the accused pleads guilty at the earliest opportunity.^{Footnote 36} Absent a significant change in circumstances, this offer should not be repeated at subsequent stages in the trial process (for example, after a preliminary hearing, on the day of trial);
Crown counsel should initiate, as well as respond to, plea discussions with counsel;
Where an accused changes counsel, Crown counsel should advise the new defence counsel of all previous offers and the Crown’s present position in light of the known facts;
Before recommending that a fine be imposed, Crown counsel should take reasonable steps to ensure that the fine is an appropriate disposition, including forming an opinion as to whether an offender is capable of paying the fine. Where possible, Crown counsel should, as part of the negotiations for resolving the case by way of a fine, arrange with the defence for the payment of the fine on the day of sentencing. If the money to pay is not immediately available, but will be in the near future, Crown counsel may wish to have the sentencing proceedings take place on that future date;
Crown counsel should ensure that, prior to making an offer to defence counsel, they consult with their CFP or designate and/or headquarters counsel when required in accordance with the PPSC Deskbook guideline “2.6 Consultation within the Public Prosecution Service of Canada”.^{Footnote 37} In addition, the PPSC Deskbook guidelines relating to particular criminal conduct (for example, impaired driving, domestic violence, mandatory minimum penalties for certain controlled substances and other offences) must be borne in mind when assessing whether a proposed disposition is appropriate; and
Crown counsel must consult with the CFP or Deputy CFP before entering into a plea agreement that may deviate from the range of sentences generally imposed for a particular offence in a jurisdiction. Consultation with colleagues should also occur when Crown counsel are uncertain about the range of sentences for an offence in a jurisdiction. The more serious the crime, the more important it is to consult.

3.5. Agreements as to the facts of the offence

Where an accused decides to plead guilty, Crown counsel must put before the court those facts that could have been proved by admissible evidence if the matter had gone to trial. Discussions regarding the facts may properly include the following:

whether to include in representations to the court embarrassing facts which are of little or no significance to the charge;
whether to rely on an agreed statement of facts; and
whether to submit an agreed statement of the impact on public welfare in the context of regulatory offences.

The following practice is not acceptable:

entering into an agreement respecting facts which results in, or gives the appearance of, misleading the court, such as:
1. an agreement not to advise the court of any part of the accused's provable criminal record which is relevant or could assist the court;
2. an agreement not to advise the court of the extent of the injury or damages suffered by a victim;
3. an agreement to withhold from the court facts that are provable, relevant, and that aggravate the offence; or
4. an agreement to outline facts to the court which, when measured against the essential elements of the offence to which the accused has pleaded guilty, would cause the presiding judge to reject the plea in favour of a plea of not guilty.

3.6. Narrowing the trial issues

For cases that are proceeding to trial, Crown counsel must attempt to narrow the issues to be litigated as much as possible. Towards this end, Crown counsel should:

identify any legal issues that may arise and seek the defence’s position on those issues; and
more particularly, identify those issues and witnesses’ anticipated evidence from which defence counsel might make admissions, such as voir dires on the admissibility of statements.^{Footnote 38}

4. Judicial Pre-Trial Conferences

Resolution discussions may take place between counsel alone or in the presence of a judge during judicial pre-trials or pre-trial conferences. Judicially supervised pre-trial conferences are now an entrenched and important facet of our criminal justice system. A system of judicially-supervised pre-trials exists in most jurisdictions, although the form may differ from one jurisdiction to the next. They are effective not only in encouraging the fair disposition of cases without trial, but also in narrowing the issues in cases that do proceed to trial.^{Footnote 39} Crown counsel are encouraged to take initiative with court administrators to hold a pre-trial conference, where the court has not done so.

Crown counsel are encouraged to take whatever steps are reasonably possible to ensure that such conferences run smoothly which may include:

ensuring that sufficient disclosure has been made to defence counsel prior to the pre-trial conference such that meaningful discussions regarding the facts and any possible issue or plea resolutions may take place;
identifying before the pre-trial conference those areas in which agreements can be reached on issues which would shorten the proceedings;
discussing the relevant issues with defence counsel prior to the pre-trial conference; and
attempting to secure the attendance of an investigator on the case, where such attendance would be useful or necessary.

Counsel may conduct guilty plea and sentence proceedings before the judge who presides over the pre-trial conference where there is a joint position on sentence or where both defence and Crown counsel consent to the pre-trial judge conducting the sentencing hearing.

5. Delegated Authority to Prosecute

At times, individuals are charged with offences under the Criminal Code and other federal statutes arising from the same incident. To avoid the need for both a provincial prosecution service and the PPSC to conduct separate trials and to avoid the potential for conflicting judicial outcomes on the same evidence, it is customary for the prosecuting service having jurisdiction over the less serious offence to delegate authority to prosecute that offence to the prosecution service having jurisdiction over the more serious offence. Thus, for example, the PPSC may authorize a provincial prosecution service to prosecute on behalf of the PPSC an offence under the Controlled Drugs and Substances Act^{Footnote 40} where the accused also faces a more serious charge under the Criminal Code. Conversely, a provincial prosecution service may authorize the PPSC to prosecute on its behalf an accused for an offence under the Criminal Code where the accused also faces a more serious drug charge.^{Footnote 41}

When a delegation of authority to prosecute a charge takes place, the prosecution service which delegated the prosecution retains ultimate control over the prosecution and the prosecutor to whom that matter has been delegated remains ultimately accountable to the delegating prosecution service.^{Footnote 42} Thus, when the Director of Public Prosecutions (DPP) or a CFP (or Deputy CFP or General Counsel, Legal Operations) on the DPP’s behalf, delegates authority to the province to prosecute a federal charge, the DPP retains the right to be informed of the matter, and to assume conduct of the delegated matter if there is disagreement on how the matter should be handled. It is usual practice for consultation between the prosecution services to continue as needed after the delegation. In practice, this ultimate accountability means that the delegating prosecution service should be consulted on resolution discussions on cases:

that give rise to sustained, significant and/or anticipated media interest;
where there is potential for a negative judicial ruling or comment against a prosecutor personally or the PPSC generally;
where there is potential for a particular resolution agreement to generate significant public criticism;
where an investigative agency’s policies, practices or enforcement powers are challenged in the context of resolution discussions; and
where a proposed resolution agreement would depart from this guideline.

Footnotes

Footnote 1

See e.g. Canada Law Reform Commission, Plea Discussions and Agreements (Working Paper 60), 1989 at 5-6 [Working Paper 60 of the Canada Law Reform Commission] for a discussion of the need for plea bargaining and the pros and cons of this practice; see also Department of Justice, Plea Bargaining by Milica Potrebic Piccinato, Department of Justice Canada, 2004, at 5-6; R v SK (1995), 99 CCC (3d) 376 at 382 (ON CA); Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (Justice G. Arthur Martin, Chair)1993, pp 279-282 [The “Martin Committee Report”]; R v Closs (1998), 105 OAC 392.

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Footnote 2

See s 606(1.1) of the Criminal Code which provides that the court is not bound by any agreement made between the accused and the prosecutor. Canadian appellate courts have articulated the standard for determining when trial judges may properly reject joint submissions on sentence accompanied by negotiated admissions of guilt. Generally, they have upheld the principle that sentencing judges should not depart from joint submissions unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest; See e.g., R v Douglas, [2002] CanLII 32492 (QCCA) at paras 40–43, 49 CR (5^th) 188, where the court held that sentencing judges should not reject joint submissions unless they are “unreasonable”, “contrary to public interest”, “unfit” or would “ bring the administration of justice into disrepute.” The court also held that submissions made by experienced counsel should be considered. See also R v Benard 2003 MBCA 92; R v Sinclair, [2004] MBCA 48; R v GWC, [2000] ABCA 333; R v Cerasuolo, (2001), 151 CCC (3d) 445 (ONCA), at pp 447-8; R v Haufe, [2007] ONCA 515; R v Bezdan, [2001] BCJ No 808 (QL) (BCCA) at para 15.

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Footnote 3

R v Abel, 2011 NWTCA 04; R v Hood, 2011 ABCA 169.

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Footnote 4

See for example, the PPSC Deskbook guidelines “5.2 Competition Act” and “5.5 Domestic Violence”; See also Memorandum of Understanding between the Canada Revenue Agency and the PPSC at para 24 states “Prosecutors will consult with the CRA before deciding to stay or withdraw charges, not to proceed with charges recommended by the CRA, or not to appeal a dismissal of charges. The CRA will be informed of decisions made.” See also the Competition Bureau’s Information Bulletin on Sentencing and Leniency in Cartel Cases, which sets out the factors that the Competition Bureau considers in making non-binding recommendations to the Director of Public Prosecutions (DPP) for lenient treatment of individuals or business organizations accused of criminal cartel offences under the Competition Act.

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Footnote 5

See the PPSC Deskbook directive “3.8 Alternative Measures.”

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Footnote 6

See e.g., R v Burlingham, [1995] 2 SCR 206, 124 DLR (4th) 7, 97 CCC (3d) 385, 38 CR (4th) 265: “Section 10(b) mandates the Crown or police, whenever offering a plea bargain, to tender that offer either to the accused's counsel or to the accused while in the presence of his or her counsel, unless the accused has expressly waived the right to counsel. It is a constitutional infringement to place such an offer directly to an accused, especially when the police coercively leave it open only for the short period of time during which they know defence counsel to be unavailable. Mere expediency or efficiency or the facilitating of the investigatory process was not enough to create urgency sufficient to permit a s 10(b) breach. To the extent that the plea bargain is an integral element of the Canadian criminal process, the Crown and its officers engaged in the plea bargaining process must act honourably and forthrightly.”

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Footnote 7

Canada Law Reform Commission Working Paper 60, supra note 1 at 12.

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Footnote 8

Ibid, at 13.

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Footnote 9

For example, in certain remote communities, community leaders and schools may have significant views on the impact of narcotics on the community.

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Footnote 10

See the PPSC Deskbook directive “1.3 Consultation within Government.”

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Footnote 11

See the PPSC Deskbook guideline “2.1 Independence and Accountability in Decision-Making”.

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Footnote 12

See the PPSC Deskbook guideline “5.1 National Security.”

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Footnote 13

Even then, depending on regional practices, it is preferable to have a court reporter present in chambers so that a complete and accurate record of the discussions can later be made available if necessary.

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Footnote 14

Courts universally have condemned pre-plea participation by the trial judge in charge of sentence negotiations: R v Wood (1975), 26 CCC (2d) 100 at 108 (AB SC); R v Dubien (1982), 67 CCC (2d) 341 at 346 - 7 (ON CA); R v White (1982), 39 Nfld and PEIR 196 (NL CA). Generally, see: G.A. Ferguson, “The Role of the Judge in Plea Bargaining”, (1972-3), 15 Crim L Q 26; Working Paper 60 of the Canada Law Reform Commission, Plea Discussions and Agreements, at 12–15, and Recommendation 4; Curran, “Discussions in the Judges Private Room”, [1991] Crim L R 79.

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Footnote 15

For an illustration of the difficulties that may arise where no proper record of discussions is kept, see R v Rajaeefard (1996), 104 CCC (3d) 225 (ON CA).

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Footnote 16

Piccinato, supra note 1 at 13.

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Footnote 17

See the PPSC Deskbook guideline “2.5 Principles of Disclosure” on providing disclosure to an unrepresented accused.

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Footnote 18

See the PPSC Deskbook guideline “2.3 Decision to Prosecute”.

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Footnote 19

There may be certain types of investigations, for example in the context of tax evasion and anti-competitive practices, where counsel for persons or corporations under investigation may initiate plea discussions even before charges are laid. In such cases, the appropriate threshold for entering into plea discussions would be where the charge approval standard can or could be met.

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Footnote 20

The term “agreement” means a Crown offer that defence counsel has accepted. It is to be distinguished from “uncommunicated positions” on file and “communicated positions” or “communicated offers” that have been communicated to defence counsel or to the accused, but have not yet been accepted.

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Footnote 21

Courts generally do not interfere with this discretion unless it has been exercised for an oblique motive, offends the right to a fair trial or otherwise amounts to an abuse of process. See R v Nixon, 2011 SCC 34 where the Supreme Court of Canada considered whether the exercise of prosecutorial discretion in the Crown’s repudiation of a plea agreement was an abuse of process contrary to s 7 of the Canadian Charter of Rights and Freedoms. Charron, J elaborated the appropriate standard for when Crown counsel may lawfully reneg on a plea agreement: “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.” The Court dismissed the appeal given that no prejudice to the accused could be shown (the accused could be restored without prejudice to the position she had been in prior to entering into the plea agreement), nor could any misconduct, improper motive or bad faith in the ADM and Crown’s decisions be shown. See also R v RM (2006) 83 OR (3d) 349, 213 CCC (3d) 107 (ONSC), R c Camiré 2010 QCCA 615. In R v Tallon, 181 CCC (3d) 261, 180 OAC 145, the appellate court accepted a change in the Crown’s position on sentence from the position stated at a pre-trial conference, prior to a guilty plea. In that case, there had been no agreement on sentence prior to the change in the Crown’s position, and the trial judge went to great lengths to ensure the accused was adequately informed of the consequences of a guilty plea.

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Footnote 22

See R v Wood, supra note 14 where the court held that the Attorney General is not barred from appealing a sentence based on a position taken at trial by a Crown counsel; R v Simoneau (1978), 40 CCC (2d) 307 (MB CA) where the court held that the appellate court will not necessarily hold the Crown to the position it agreed to take at trial but would determine whether the Crown should be bound by that position depending on the circumstances of each case. Similarly in Attorney General of Canada v Roy (1972), 18 CRNS 89 (QC QB), followed in R v Léger, [1996] JQ no 522 (QC CA), the court held that the Crown, on appeal should not repudiate its position taken at trial except in the gravest of circumstances, including:

good faith Crown error that results in imposition of an illegal sentence;
misleading of Crown counsel at trial;
the gravity of crime and gross insufficiency of sentence outweighs the public interest in the orderly administration of justice.

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Footnote 23

In this regard, see the Ontario Court of Appeal decision in Rajaeefard, supra note 15, where undue pressure was brought to bear on the accused by a judge.

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Footnote 24

Such as a memorandum to file or, minimally, a detailed endorsement on the file.

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Footnote 25

This includes an offence arising out of the same transaction: Criminal Code, s 606(4).

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Footnote 26

Section 725 of the Criminal Code now regulates this practice.

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Footnote 27

See PPSC Deskbook guideline “3.10 Elections and Re-Elections” for guidelines regarding the Crown’s discretion to elect. Note in particular the discussion of the Crown’s ability to re-elect from indictable to summarily when the limitation period for proceeding summarily has passed. See also R v Dudley 2009 SCC 58.

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Footnote 28

See PPSC Deskbook guideline “3.9 Waiver of Charges” for the policy and procedure on waivers.

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Footnote 29

Section 606(1.1) of the Criminal Code provides: A court may accept a plea of guilty only if it is satisfied that the accused (a) is making the plea voluntarily; and (b) understands (i) that the plea is an admission of the essential elements of the offence, (ii) the nature and consequences of the plea, and (iii) that the court is not bound by any agreement made between the accused and the prosecutor. Section 606(1.2) stipulates that “the failure of the court to fully inquire whether the conditions set out in subsection (1.1) are met does not affect the validity of the plea.” See also R v Nevin (2006) 245 NSR (2d) 52, 210 CCC (3d) 81 where the Nova Scotia Court of Appeal allowed an appeal of a conviction under s 686(1)(a)(iii) of the Criminal Code on the basis that the conviction resulted from an involuntary guilty plea which, in the court’s view, amounted to a miscarriage of justice. For a discussion of the risks of improper inducements to plead guilty, see Canada Law Reform Commission Working Paper 60, supra note 1 at 17–22.

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Footnote 30

“Martin Committee Report”, supra note 1, at 301.

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Footnote 31

But see the specific policy on sentencing in certain types of offence: the PPSC Deskbook guideline “5.5 Domestic Violence”, supra note 4.

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Footnote 32

See for example, s 109(1) of the Criminal Code which requires a prohibition order for firearms in certain cases, or s 487.051 of the Criminal Code which requires the judge, upon conviction for a “primary designated offence”, to order the taking of a DNA sample for forensic analysis.

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Footnote 33

In some exceptional circumstances, however, Crown counsel may waive the right to seek forfeiture orders – for example in the case of relatively inexpensive items such as cell phones.

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Footnote 34

See the PPSC Deskbook guideline “5.7 Impaired Driving Cases: Notice to Seek Greater Punishment” which sets out the policies on seeking greater punishment for this offence.

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Footnote 35

See the PPSC Deskbook directive “3.8 Alternative Measures”, supra note 5.

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Footnote 36

In Competition Act matters, because of the frequent involvement of counsel during the investigative stage, discussions may take place before changes are laid.

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Footnote 37

See the PPSC Deskbook guideline “2.6 Consultation within the Public Prosecution Service of Canada”.

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Footnote 38

It may be useful in this regard to draw up a list of potential admissions and provide it to defence counsel for his or her consideration and signature.

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Footnote 39

Pursuant to s 625.1(2) of the Criminal Code, pre-trial conferences are mandatory for cases in which a jury trial is to take place. Pre-trial conferences may also take place in trials to be conducted by a judge or justice alone, pursuant to s 625.1(1).

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Footnote 40

SC 1996, c 19.

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Footnote 41

The Director of Public Prosecutions may enter into agreements with his or her provincial or territorial counterpart respecting the delegation of authority to prosecute where an accused has been charged on the same information or indictment with federal and provincial/territorial offences. These are commonly referred to as “major-minor agreements”. Alternatively, CFPs may enter into similar agreements with their provincial or territorial counterparts at the local level. These may take the form of local major-minor agreements signed between the CFP and his or her counterpart that delegate standing authority to prosecute certain “minor” offences from the other jurisdiction, or ad hoc arrangements in individual cases.

Return to footnote 41 referrer

Footnote 42

See R v Luz, [1991] OJ No 1996 at paras 22–23, 5 OR (3d) 52, R v DiGuiseppe, [2003] OJ No 5630; R v Lyndsay (unreported, 6 October 2009, BC Prov Ct).

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