Prosecutorial Discretion To Repudiate Plea Agreements - The Supreme Court's Decision In R. V. Nixon

Article by Paul Sharp and Logan Crowell, Summer Law Student

On June 24, 2011, the Supreme Court of Canada released its unanimous decision in R v. Nixon (2011 SCC 34). This decision holds that Crown prosecutors may, in certain circumstances, repudiate plea agreements as those agreements fall within the realm of prosecutorial discretion. This decision could have a significant impact on how plea agreements are approached moving forward and the accused's ability to rely on such agreements.

THE CASE

At issue in this case was a plea agreement between the Crown and the Appellant, Ms. Olga Nixon. Ms. Nixon had been charged with multiple Criminal Code offenses, including dangerous driving and impaired driving, following an incident where she was alleged to have driven a motor home through an intersection, striking a second vehicle and killing two of the three passengers in it. Feeling his evidence would not support a conviction, the Crown counsel entered into a plea agreement with Ms. Nixon that reduced the charges to regulatory offences and recommended only a $1,800 fine. This decision caught the eye of the counsel's superiors, who reviewed the decision and instructed the agreement be repudiated and trial be pursued.

In arriving at its ultimate decision that the repudiation was acceptable, the Court reached four conclusions:

1. The repudiation of a plea agreement falls within the scope of prosecutorial discretion and is therefore only subject to judicial review for abuse of process.

2. Abuse of process reviews should only be conducted when the evidentiary foundation is proper, meeting the necessary threshold.

3. Evidence a plea agreement has been repudiated by the Crown meets that threshold.

4. To find the repudiation was an abuse of process the repudiation must either result in prejudice undermining trial fairness or undermine society's expectations of fairness in the administration of justice.

Taken together, this means that repudiating a plea agreement, though subject to judicial review, would be acceptable short of undermining trial fairness or the administration of justice.

REPUDIATION IS PROSECUTORIAL DISCRETION SUBJECT TO REVIEW FOR ABUSE OF PROCESS

In defining the scope of prosecutorial discretion, the Court held prosecutorial discretion to encompass the decision as to whether a prosecution should be brought, continued or ceased. Further, that decision making process does not terminate when a plea agreement is formed but continues as long as...