Frederick Anderson was charged with over 80. He pleaded guilty. Prior to his plea he was served with a Notice of increased penalty. At sentencing the Crown intended to prove that Notice was served; the result being that Anderson would be subject to a minimum sentence of 120 days (Anderson had four prior convictions).

Anderson sought to challenge the filing of notice alleging it breached section 7 of the Charter. In particular, he alleged that the Crown was obliged to consider his Aboriginal status. The Crown’s position was that the filing of Notice was a matter of prosecutorial discretion reviewable only through a finding of abuse of process. The matter ultimately made its way to the Supreme Court: 2014 SCC 41.

In considering the appeal the Court considered two issues. First, is the Crown required to consider the Aboriginal status of the offender in filing Notice of increased penalty. Second, whether filing the Notice is a matter of “core” prosecutorial discretion and on what basis can the exercise of Crown discretion be reviewed.

With respect to the first issue, the Court rejected the notion that the Crown was required to consider Aboriginal status for two reasons.

First, consideration of the Gladue principles is the responsibility of the judge not the Crown:

Importantly, both Gladue and Ipeelee speak to the sentencing obligations of judges to craft a proportionate sentence for Aboriginal offenders. They make no mention of prosecutorial discretion and do not support Mr. Anderson’s argument that prosecutors must consider Aboriginal status when making a decision that limits the sentencing options available to a judge. Mr. Anderson’s argument in effect equates the duty of the judge and the prosecutor, but there is no basis in law to support equating their distinct roles in the sentencing process. It is the judge’s responsibility to impose sentence; likewise, it is the judge’s responsibility, within the applicable legal parameters, to craft a proportionate sentence. If a mandatory minimum regime requires a judge to impose a disproportionate sentence, the regime should be challenged [para 25].

Second, the argument that Aboriginal status must be considered by the Crown relies on a principle of fundamental justice that the Court held is not valid: “The principle contended for by Mr. Anderson does not meet the second requirement that it enjoy consensus as a principle that is fundamental to the way in which the legal system ought to fairly operate” [para 30]. In concluding on this point the Court noted that accepting this principle would significantly impact on the role of the Crown and “hobble” them in their decision making processes:

We must begin by acknowledging that the principle advanced by Mr. Anderson would enormously expand the scope of judicial review of discretionary decisions made by prosecutors. In doing so, it puts at risk the adversarial nature of our criminal justice system by hobbling Crown prosecutors in the performance of their work and by inviting judicial oversight of the numerous decisions that Crown prosecutors make on a daily basis [para 31].

With respect to the second issue, the Court addressed two points.

First, the Court considered the scope of Crown discretion. In doing so it held that there has been a lack of clarity in the law regarding the scope of Crown discretion. The development of “core” discretion is not helpful and should be eliminated. In its place, the Court held that all discretionary decisions are to be treated equally and, importantly, the list of such decisions are not closed or fixed:

In an effort to clarify, I think we should start by recognizing that the term “prosecutorial discretion” is an expansive term that covers all “decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it” (Krieger, at para. 47). As this Court has repeatedly noted, “[p]rosecutorial discretion refers to the discretion exercised by the Attorney-General in matters within his authority in relation to the prosecution of criminal offences” (Krieger, at para. 44, citing Power, at p. 622, quoting D. Vanek, “Prosecutorial Discretion” (1988), 30 Crim. L.Q. 219, at p. 219 (emphasis added)). While it is likely impossible to create an exhaustive list of the decisions that fall within the nature and extent of a prosecution, further examples to those in Krieger include: the decision to repudiate a plea agreement (as in R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566); the decision to pursue a dangerous offender application; the decision to prefer a direct indictment; the decision to charge multiple offences; the decision to negotiate a plea; the decision to proceed summarily or by indictment; and the decision to initiate an appeal. All pertain to the nature and extent of the prosecution. As can be seen, many stem from the provisions of the Code itself, including the decision in this case to tender the Notice.
In sum, prosecutorial discretion applies to a wide range of prosecutorial decision making [paras 44-45].

Second, the Court considered the issue of when and how the exercise of Crown discretion may be reviewed. In doing so, it noted that “[m]anifestly, prosecutorial discretion is entitled to considerable deference” [para 48]. The review of prosecutorial discretion, the Court held, is reviewable only for abuse of process – which “refers to Crown conduct that is egregious and seriously compromises trial fairness and/or the integrity of the justice system” [para 50]. In stressing this point the Court noted that to the “extent the Gill test suggests that conduct falling short of abuse of process may form a basis for reviewing prosecutorial discretion, respectfully, it should not be followed” [para 51].

Having set the standard for review, the Court also noted that before the Crown is required to reply to such allegations, an evidentiary basis must be established [para 55].

In conclusion, the Court held:

Parliament has expressly conferred on the Crown the discretion to tender the Notice at the sentencing hearing through the governing provisions of the Code. This discretion is consistent with our constitutional traditions. As the Crown points out, tendering the Notice is not simply a decision as to what submissions will be made at a sentencing hearing (A.F., at para. 119). Tendering the Notice fundamentally alters the extent of prosecution — specifically, the extent of the jeopardy facing the accused. In this respect, the Crown’s decision to tender the Notice is analogous to the decision to proceed with charges that attract a mandatory minimum sentence when other related offences have no mandatory minimum sentence; the decision to proceed by indictment rather than summary conviction when different mandatory minimum sentences are involved; and the decision to proceed by indictment rather than by summary conviction when that decision precludes certain sentencing options.
For these reasons, I conclude that tendering the Notice is a matter of prosecutorial discretion. As a result, it is reviewable only for abuse of process. In the complete absence of any evidence to support it, Mr. Anderson’s abuse of process argument must fail [paras 62-63].

Anderson is a very helpful decision beyond the specific issues it addresses for a number of reasons.

First, it has clarified the scope of Crown discretion. It has done away with the “core” dichotomy and it has recognized there is not a closed list of discretionary powers or decisions.

Second, it has held that review of such discretion is only permitted for abuse of process.

Third, it has held that an evidentiary basis is required before the Crown needs to respond to challenges to the exercise of its discretion.

Fourth, the Court recognizes that to the extent a regime results in a disproportionate sentence it can be challenged – short of which it must be applied.

DGM

In a recent blog, Crown Discretion: Exercising, or is it excising, Crown Discretion, I commented on the issue of whether the Crown's discretionary decision to file notice of increased penalty was part of core prosecutorial discretion. In the recent decision of R v Nixon, 2011 SCC 34 the Supreme Court considered the issue of prosecutorial discretion; while it is considered in a different context, the Court's ruling may shed some light on the likelihood of R v Gill, 2011 ONSC 1145 being upheld or overruled if appealed.

Olga Nixon was charged with a number of offences including dangerous driving causing bodily harm and impaired driving causing bodily harm. It was alleged that Nixon “drove her motor home through an intersection without stopping and struck another vehicle, killing a husband and wife and injuring their young son” [para 2]. Nixon ultimately provided breath samples and registered 200mg of alcohol per 100ml of blood. A toxicologist testified that these results extrapolated to the time of the accident would have been between 225mg and 250mg of alcohol per 100ml of blood [para 2].

Nixon elected to be tried by judge and jury and the case proceeded to a preliminary inquiry. The Assistant Crown Attorney who had carriage of the file had concerns about the admissibility of the evidence and in “particular the breathalyzer results and the probative value of the eyewitness evidence that a motor home had been seen driving erratically some time before the accident” [para 7]. Based on this analysis of the Crown’s case the results of the breath samples were not adduced at the preliminary hearing and the presiding judge was informed that the Crown would only be seeking committal on the dangerous driving counts; committal on these counts was conceded by Nixon [para 7].

After the preliminary hearing Crown and defence agreed that Nixon would plead guilty to careless driving under the Traffic Safety Act; a joint sentence of an $1800 fine was agreed upon. Prior to agreeing to this resolution, Crown counsel sought and was granted approval by his immediate supervisor to proceed with the plea to the TSA offence. In light of the seriousness of the allegations a report was prepared and forwarded to senior officials in the justice department. The report caused significant concern to the Acting Assistant Deputy Minister (ADM); an inquiry was commenced and an adjournment of the plea was obtained. Defence counsel was not informed of the reason for the adjournment.

Ultimately the ADM concluded that the assigned Crown’s assessment was flawed and that the proposed resolution “was contrary to the interests of justice and would bring the administration of justice into disrepute” [para 10]. The assigned Crown was instructed to withdraw the proposed resolution agreement and proceed to trial on the dangerous driving charges in accordance with the outcome of the preliminary hearing.

As a result of this decision, Nixon brought an application under section 7 of the Charter alleging an abuse of process and requesting an order compelling the Crown to honour the proposed resolution. The application judge granted the application and ordered the Crown to proceed with the plea agreement. Nixon pleaded guilty to careless driving. The Crown successfully appealed; the acquittals were set aside and a new trial was ordered on the dangerous driving charges. Nixon appealed to the Supreme Court.

At the Supreme Court, Charron J, writing for a unanimous Court, first noted that there was agreement between all parties that the Crown's conduct and decision to enter into a plea agreement was part of the "core" discretion [para 29]. The issue, however, was whether the decision to repudiate that deal also fell within this discretion.

Although it was not agreed by all, Charron J noted that the question of whether the decision to repudiate also fell within the "core" discretion was as easily resolved:

As aptly put by Paperny J.A., in determining whether any impugned decision falls within the core of prosecutorial discretion, it is 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?” (para. 32). Applying this test, she held that the ADM’s decision to repudiate the plea agreement “fell squarely within the core elements of prosecutorial discretion” (para. 33). I agree. In my respectful view, it is difficult to see how the ADM’s decision could otherwise be characterized. The ADM effectively decided that the prosecution against Ms. Nixon should be continued and that it should be for the Criminal Code offences of dangerous driving, not for the traffic infraction of careless driving. Clearly, the ADM’s decision to repudiate the plea agreement also constitutes an act 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 are ongoing, the Crown may be required to make further decisions about whether the prosecution should be continued and, if so, in respect of what charges [emphasis added] [para 30].

It followed, Charron J held, that the decision to repudiate the deal was only reviewable on a showing of abuse of process [para 31].

Turning to that issue, Charron J held that the Crown’s repudiation of the plea agreement did not amount to conduct that was so unfair or oppressive to the accused, or so tainted by bad faith or improper motive, that allowing the Crown to proceed on the Criminal Code charges would tarnish the integrity of the judicial system and thus constitute an abuse of process.

...the ADM's decision to resile from the plea agreement falls within the scope of prosecutorial discretion. 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. 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 [para 68].

It is interesting to note in Nixon the decision by the Crown to repudiate its previous deal had the effect of continuing the proceedings. At the stage that this decision was made, however, there had previously been decisions to commence proceedings, what charges to proceed with and to terminate proceedings by way of a plea agreement. These previous decisions, Charron J held, did not change the nature of the ADM's decision - it was part of the "core" discretion.

In the context of filing notice of increased penalty, the Crown has similarly made a decision to commence proceedings and a decision about what charges to proceed with. However, these previous decisions and the entering of a conviction does not exhaust the Crown's "core" discretionary powers. One discretionary option open to the Crown is to stay proceedings, even after conviction. The decision, therefore, to file notice, is a decision about continuing the proceedings. The fact that it impacts the accused and the court by narrowing the available sentencing options, should not - and does not in my view -change the nature of the decision.

DG Mack