



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Delchev, 2015 ONCA 381

DATE: 20150528

DOCKET: C56361

Simmons, Rouleau and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nikolai Delchev

Appellant

Jill R. Presser and Andrew Menchynski, for the appellant

Susan Magotiaux, for the respondent

Heard: October 15, 2014

On appeal from the convictions entered by Justice Wailan
    Low of the Superior Court of Justice, sitting with a jury, on August 24, 2012.

Tulloch J.A.:

[1]

The appellant, Nikolai Delchev appeals against his convictions on 16
    counts of firearms and drug related offences, including one count of possession
    of cocaine for the purpose of trafficking, following a trial by judge and jury.

[2]

The appellant advances one primary ground of appeal, which is that the
    trial judge erred in failing to order a stay of proceedings for an abuse of
    process.     The appellants abuse of process application was made following a
    resolution discussion with the trial Crown in which the appellant alleges the
    trial Crown offered to recommend a conditional sentence sentencing
    position to the Crown-in-charge based on a guilty plea to certain charges if
    the appellant provided an induced statement indicating certain evidence he had
    given in pre-trial proceedings was false and his trial counsel knew it was
    false. The Crown asserted the discussion was privileged but agreed to respond
    to the application on the basis of a summary of the appellants allegations
    concerning what had taken place.

[3]

The trial judge found that the discussion was privileged and that, in
    any event, there was no evidence that the conditional offer was made without
    foundation or in bad faith. She dismissed the appellants application.

[4]

On appeal, the appellant seeks a stay of proceedings based on abuse of
    process, or in the alternative, an order for a new trial at which his abuse of
    process claim can be fully litigated.

A.

Facts

[5]

The appellant was charged with twenty-three drug and weapons related offences
    following a police search of two residences. The police obtained the search
    warrants for the residences as a result of information received from a
    confidential informant.

[6]

Trial was set for February 28, 2011. Part of the defence theory was that
    a man named Jason Ramsay had forced the appellant to store the guns by
    threatening him with physical harm. According to the defence, the appellant
    owed Ramsay a significant drug debt and Ramsay threatened the appellant with
    harm to himself and his father if he did not pay off his debt. The defence
    alleged that Ramsay issued the appellant an ultimatum: store the weapons, or
    Ramsay would tell his guys the appellant owed a significant debt.

[7]

The defence also alleged that Ramsay was the confidential informant who
    tipped off the police to the guns, and that the Crown knew the appellant only
    possessed the guns because Ramsay had threatened him. Based on this allegation
    and alleged breaches of the appellants ss. 7, 8 and 10(b)
Charter
rights,
    at the outset of trial the defence brought an application to exclude the
    evidence from the searches of the residences and to stay the proceedings (the
    first application).

[8]

The appellant testified on the first application to the alleged threats
    by Ramsay. Ramsay testified and contradicted the appellants evidence. Although
    the trial judge found the appellants s. 10(b)
Charter
rights were
    breached, she declined to exclude the evidence obtained on executing the search
    warrants. The appellants first application was dismissed.

[9]

A new trial date was set for December 12, 2011. That morning, at the
    request of counsel, the trial judge stood the matter down to allow for a resolution
    discussion. Counsel returned, and told the trial judge the discussion was
    unsuccessful. They then selected a jury. Evidence was to be called the
    following day.

[10]

The
    next morning, the appellant advised he would be bringing another abuse of
    process application (the second application). The jury was discharged.

[11]

The
    second application was founded on the content of the offer made by the trial
    Crown the previous day. The Crown asserted privilege with respect to the
    content of the resolution discussion, but agreed to respond to the application
    on the basis of the following allegations:

a)

there was a
    settlement discussion on December     12, 2011, with [the trial Crown attorney,
    the officer         in charge, the appellants two trial counsel, the         appellant
    and the appellants father];

b)

the Crown
    indicated that if the [appellant] was to     provide an induced statement in
    which he would        admit that his evidence up to that point in the           proceeding
    regarding duress was false, and that      his counsel knew it to be false, the
    Crown would     recommend a conditional sentence to the Crown  Attorney for
    Scarborough as the Crown position  on sentence upon the [appellants] plea of
    guilty      to certain charges;

c)

the Crown advised
    that the [appellant] should get    independent legal advice regarding the
    settlement       offer;

d)

the Crown advised
    that this settlement would be     conditional on the approval of the Crown
    Attorney          for Scarborough;

e)

the Crown advised
    the [appellants] father that the   resolution would save a lot of time and
    money          and that the [appellant] should get independent      legal
    advice regarding the offer;

f)

the
    offer was immediately rejected by the      appellant; [and]

g)

due to the
    allegations made by the [appellant],        [the trial Crown who made the offer
    would] not be   conducting the trial of this matter [if it was heard      on
    its merits].

[12]

The
    appellant obtained separate counsel to argue the second application.

Decision on the second application

[13]

The trial judge concluded that the resolution discussion between
    the appellant, his counsel and the Crown was subject to settlement privilege.
    She determined the Crown did not waive privilege simply because the discussion was
    conducted in the presence of the appellants father.


[14]

The
    trial judge held that no exception to settlement privilege applied in this
    case.  She stated that the notable exceptions to settlement privilege include
    when evidence of settlement discussions is necessary to prove either that a
    settlement was reached or that the communications contained threats or illegal
    actions.  No bargain was reached, and the appellant failed to provide extrinsic
    evidence of prosecutorial impropriety.

[15]

The
    trial judge relied on case law dealing with the review of the exercise of
    prosecutorial discretion  the Supreme Courts decisions in
R. v. Nixon
,
    2011 SCC 34, [2011] 2 S.C.R. 566, and
R. v. Power
, [1994] 1 S.C.R. 601
     to conclude that extrinsic evidence of impropriety beyond the communications
    themselves was required for the court to inquire into the reasons behind the
    exercise of Crown discretion. She appears to have reasoned that it was
    necessary for the appellant to meet this evidentiary threshold to enable her to
    inquire into whether there was prosecutorial impropriety such that an exception
    to settlement privilege would apply.

[16]

She
    held there was no evidence that Crown counsel was threatening the appellant or
    suggesting he should do something unlawful. She reasoned that the offer was
    similar to other offers of sentencing consideration in exchange for information
    about other persons. She rejected the proposition that solicitors should be
    immune from being targets of this type of plea bargain.

[17]

The
    trial judge rejected the appellants argument that the offer amounted to an
    attempt to interfere in his relationship with his solicitor. She reasoned that
    if the offer had been accepted, there would have been a conflict  but in that
    case, the appellant would not have had a trial on the merits. As the offer was
    rejected, there was no breach of the appellants relationship with his counsel,
    who were to continue as counsel at any trial.

[18]

The
    trial judge concluded that because settlement privilege applied, and there was
    no extrinsic evidence supporting an exception based on prosecutorial
    impropriety, the evidence of the discussion was inadmissible. She dismissed the
    application for a stay.

The appellants trial

[19]

The
    appellant proceeded to trial before a new jury. He testified again in support
    of his defence of duress, though the trial judge later declined to put duress
    to the jury. His original counsel represented him at trial. The jury found the
    appellant guilty on sixteen counts.

B.

Grounds of Appeal

[20]

The
    appellant requests that this court enter a stay of proceedings, or in the
    alternative, order a new trial to enable him to have a full hearing of his abuse
    of process application. The appellant makes three main arguments for why the
    appeal should be allowed.  They are as follows:

1.

The trial judge
    erred in finding that the evidence of the settlement discussion was subject to settlement
    privilege and therefore inadmissible on the application;

2.

The trial judge
    denied natural justice to the appellant by considering the propriety of the
    Crowns conduct without giving the appellant an opportunity to make oral
    submissions on the issue;

3.

The trial judge
    erred in failing to find that the trial Crowns conduct was grossly improper
    such as to constitute an abuse of process warranting a stay of proceedings.

[21]

I
    agree with the appellant that the trial judge erred in finding the evidence of
    the resolution discussion could not be admitted as an exception to settlement
    privilege. On the abuse of process issue, I conclude the appellant met the
    evidentiary burden for an inquiry into the exercise of Crown discretion set out
    by the Supreme Court in
Nixon
. I would therefore allow the appeal and
    order a new trial. As a result, it is not necessary to address the appellants
    argument that he was denied natural justice.

(1)

Settlement Privilege

[22]

The
    appellant asks this court to find that the evidence of the plea bargaining discussion
    was admissible for the purpose of alleging abuse of process by the Crown. In my
    view, while the evidence of the discussion is subject to settlement privilege,
    I agree with the appellant that the trial judge erred in holding no exception
    to that privilege applied. The evidence of the discussion should have been
    admitted for the purpose of the appellants abuse of process application.

(a)

Standard of review

[23]

The
    question of whether evidence is privileged involves the identification of legal
    principles, and the application of those principles to the facts as drawn from
    the evidence. The trial judges identification of the applicable legal
    principles will be assessed on a correctness standard, though deference is owed
    to her application of those principles to the facts:
Sable Offshore Energy
    v. Ameron International Corp.
, 2015 NSCA 8, 38 C.L.R. (4th) 1, at para.
    43; see also
Thomson v. University of Alberta
, 2013 ABCA 391, 561 A.R.
    391, at para. 11.

(b)

Is the discussion protected,
prima facie
, by settlement
    privilege?

[24]

Settlement
    privilege is a class privilege, creating a 
prima facie
presumption of
    inadmissibility:
Sable Offshore Energy Inc. v. Ameron International Corp.,
2013 SCC 37, [2013] 2 S.C.R. 623,

at para. 12.  Settlement
    privilege applies only if the following conditions are met:

(1)     A litigious dispute must be in existence or within     contemplation.

(2)     The communication must be made with the   express or
    implied intention that it would not be      disclosed to the court in the event
    negotiations           failed.

(3)     The purpose of the communication must be to        attempt
    to effect a settlement. [A.W. Bryant, S.N.         Lederman & M.K. Fuerst,
Sopinka,
    Lederman &           Bryant: The Law of Evidence in Canada
, 4th ed.           (Markham:
    LexisNexis Canada, 2014), at p. 1039;  citations omitted.]

[25]

The
    appellant takes issue with the third of these requirements. He argues the offer
    was not made for the purpose of achieving settlement or compromise, but rather
    with some other object in view and from wrong motives:
Pirie v. Wyld
(1886), 11 O.R. 422 (H.C.).

[26]

While
    the Crowns offer was unusual, I am not prepared to infer that resolving the
    appellants charges was not at least some part of the purpose of the offer.
    Settlement does not have to be the only purpose of a settlement negotiation in
    order for privilege to apply. It is not uncommon for a resolution offer to
    include an agreement that an accused will testify for the Crown in another
    matter. The resolution discussion here was arranged so that the Crown could
    make an offer of settlement, albeit a highly unusual one. All the parties
    involved understood that a settlement discussion was occurring.

[27]

Settlement
    privilege applies to the discussion and the evidence from the discussion is
prima
    facie
inadmissible on the abuse of process motion. However, based on the
    circumstances of the discussion and the content of the offer, I would conclude
    the evidence is admissible as an exception to settlement privilege.  I will
    explain.

(c)

Does an exception to settlement privilege apply?

[28]

Exceptions
    to settlement privilege will be found when the justice of the case requires it:
Sable Offshore
, at para. 12.  As the Supreme Court held in
Sable
    Offshore
, at para. 19, to justify an exception:

a defendant must show that, on balance, 
a competing public
    interest outweighs the public interest in encouraging settlement
. These
    countervailing interests have been found to include allegations of
    misrepresentation, fraud or undue influence, and preventing a plaintiff from
    being overcompensated. [Citations omitted; emphasis added.]

[29]

Below,
    I first consider whether the public interest in encouraging settlement would
    be furthered by preventing admission of the discussion in this case. I then
    determine whether the appellants allegation of prosecutorial misconduct
    constitutes a competing public interest that outweighs the public interest in
    encouraging settlement as applied to the facts of this case.

[30]

The
    public interest in and rationale behind settlement privilege was summarized by
    the Supreme Court in
Union Carbide Canada Inc. v. Bombardier Inc.,
2014
    SCC 35, [2014] 1 S.C.R. 800, at para. 31:

Settlement privilege is a common law rule of evidence that
    protects communications exchanged by parties as they try to settle a dispute.
    Sometimes called the without prejudice rule, it enables parties to
    participate in settlement negotiations without fear that information they
    disclose will be used against them in litigation. This promotes honest and
    frank discussions between the parties, which can make it easier to reach a
    settlement: In the absence of such protection, few parties would initiate
    settlement negotiations for fear that any concession they would be prepared to
    offer could be used to their detriment if no settlement agreement was
    forthcoming (A. W. Bryant, S. N. Lederman and M. K. Fuerst,
The Law of
    Evidence in Canada
(3rd ed. 2009), at para. 14.315).

[31]

In
    other words, settlement privilege is important because parties would be
    reluctant to engage in settlement discussions if those discussions could be
    admitted at trial as evidence of concessions. The exceptions to this general
    privilege are justified where evidence of the settlement or negotiations is
    intended for use other than illustrating the weaknesses of one partys case:
    see
Sopinka, Lederman & Bryant: The Law of Evidence in Canada
, at

pp. 1044-1045; R.W. Hubbard, S. Magotiaux & S.M. Duncan,
The Law
    of Privilege in Canada
, vol. 2, loose-leaf (Toronto: Thomson Reuters
    Canada, 2014), at pp. 12-96.1 to 12-96.2 (September 2014). If a party is not
    seeking to admit the settlement offer or negotiations as evidence of a
    concession, an exception to settlement privilege would do little to detract
    from the public interest in encouraging settlement.

[32]

In
    the instant case, the appellant was not attempting to adduce the Crowns
    settlement offer as evidence that the Crown had a weak case. While the respondent
    notes that the appellant did attempt to use the offer for such a purpose on his
    sentence appeal, the issue here is whether the contents of the settlement
    discussion are admissible to allege abuse of process. The allegation of abuse
    of process is unrelated to the merits of the Crowns case against the
    appellant. Admission of the settlement offer on the abuse of process motion
    would have a minimal effect, at most, on the goal of encouraging settlement.

[33]

I
    turn now to whether there is a competing public interest that militates in
    favour of an exception to settlement privilege. As stated above, these
    competing interests have been found to include allegations of
    misrepresentation, fraud or undue influence, and preventing a plaintiff from
    being overcompensated:
Sable Offshore,
at para. 19. In my view, an
    allegation of prosecutorial misconduct constitutes an analogous countervailing
    interest.

[34]

An
    allegation of prosecutorial misconduct is analogous to the examples provided by
    the Supreme Court in
Sable Offshore
of misrepresentation, fraud and
    undue influence. These examples all suggest that one party has engaged in
    wrongdoing that may have led to an unjust settlement or that may have tainted
    the conduct of the litigation itself. It is in the interests of justice for a
    person who has been wronged to be able to present evidence of the alleged
    wrongdoing before the court.

[35]

This
    policy objective is amplified when the alleged wrongdoing is an abuse of
    process by the Crown. While the stakes may be high in many civil proceedings,
    in the criminal context, the risk that an accused person may be deprived of his
    or her liberty in circumstances amounting to an abuse of process is very
    serious indeed. As stated by LHeureux-Dubé J., writing for the majority of the
    court in
R. v. O'Connor
, [1995] 4 S.C.R. 411, at para. 63:

It would violate the principles of fundamental justice to be
    deprived of one's liberty under circumstances which amount to an abuse of
    process and, in my view, the individual who is the subject of such treatment is
    entitled to present arguments under the
Charter
and to request a just
    and appropriate remedy from a court of competent jurisdiction.

[36]

I
    would note that there is a distinction between whether the Crown must justify
    its exercise of discretion and whether an exception to settlement privilege
    applies such that the accused can put the statements made to him by the Crown
    before the court. An accused is permitted to give evidence of a settlement
    offer made by the Crown in order to argue that the settlement offer constituted
    an abuse of process; by contrast, the Crown will only exceptionally be required
    to justify that exercise of discretion.

[37]

In
    my view, the appellant has raised a countervailing public interest  alleged
    prosecutorial misconduct amounting to an abuse of process  that outweighs the
    public interest in promoting settlement in the circumstances of this case.

(d)

Was extrinsic evidence of prosecutorial misconduct required to establish
    an exception to settlement privilege?

[38]

The
    trial judge erred by concluding the appellant was required to provide
    extrinsic evidence of prosecutorial misconduct in order to establish an
    exception to settlement privilege.

[39]

The
    Supreme Court did not give any indication in
Sable Offshore
that
    extrinsic evidence was required; the court indicated instead that allegations
    of misrepresentation, fraud or undue influence, for example, could suffice (at
    para. 19). In the case of fraud or undue influence, a partys wrongful conduct
    may have occurred entirely within the context of negotiations. An allegation
    that a party lied during negotiations may be difficult to substantiate absent
    evidence of the negotiations themselves. Similarly, such a requirement would
    make it impossible for an accused to argue the content of an offer itself was
    abusive. Where the content of an offer itself is alleged to be the abuse, there
    will necessarily be no or limited extrinsic evidence to support the allegation.

[40]

In
    my view, the trial judge in the present case erred in relying on
Nixon
and
Power
for the proposition that extrinsic evidence is a requirement
    to establish an exception to settlement privilege. As the appellant correctly
    points out, those cases do not deal with settlement privilege, but rather the
    review of prosecutorial discretion.

[41]

The
    trial judge erred in failing to admit the evidence of the resolution
    discussion. I now turn to the appellants argument on abuse of process.

(2)

Abuse of Process

[42]

The
    appellants main argument is that the settlement offer made to him by Crown
    counsel constitutes an abuse of process which entitles him to a stay of proceedings.

[43]

While
    the trial judge dismissed the application on the basis of settlement privilege,
    due to the manner in which she addressed the applicability of an exception, she
    also commented on the merits of the application for a stay. She found that
    [t]here must be an evidentiary basis of prosecutorial impropriety, consisting
    of evidence extrinsic to the settlement communications themselves before the
    court will inquire into the reasons behind the settlement offer. She concluded
    the appellant had failed to provide the required extrinsic evidence.

[44]

In
    my view, the trial judge correctly stated that the appellant must overcome an
    evidentiary burden before the court will look behind the exercise of
    prosecutorial discretion. However, she erred in concluding that extrinsic
    evidence is required in order to meet that burden. For the reasons outlined
    below, I agree with the appellant that the evidentiary threshold for an inquiry
    into prosecutorial discretion was met on the allegations the Crown was prepared
    to respond to. The denial of the inquiry is an error and a new trial is
    necessary.

[45]

In
    explaining how I reach this conclusion, I first outline the approach to the
    review of prosecutorial discretion, including the threshold evidentiary burden
    that must be met by an accused person alleging an abuse of process based on the
    improper exercise of prosecutorial discretion. Second, I explain why the
    Crowns offer and the circumstances in which it was made constitute a rare and
    exceptional event, analogous to the Crowns decision to repudiate a plea
    agreement in
Nixon
. Finally, I go on to explain why the appropriate
    remedy in the circumstances is to send the matter back for a new trial where
    the issues of whether the appellant has proved an abuse of process and whether
    a stay is warranted can be pursued.

(a)

How do courts approach the review of prosecutorial discretion?

[46]

Prosecutorial
    discretion is an expansive term that covers all decisions regarding the nature
    and extent of the prosecution and the Attorney Generals participation in it:
R.
    v. Anderson
, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 44 (citations and
    internal quotations omitted). The decision to negotiate a plea agreement falls
    within the scope of prosecutorial discretion:
Anderson,
at para. 44.
    Neither party in the present case disputes that the settlement offer made to
    the appellant constituted an exercise of prosecutorial discretion.

[47]

In
    most cases, the exercise of prosecutorial discretion is not subject to review
    by the courts. The rationales for this principle include the doctrine of
    separation of powers, the efficiency of the criminal justice system, and the
    limited competence of courts to consider the factors involved in making
    decisions to prosecute:
Anderson
, at paras. 46-47.

[48]

Prosecutorial
    discretion is reviewable, however, for abuse of process, which must be
    established by the accused on a balance of probabilities:
Anderson
, at
    paras. 51-52.

[49]

An
    accused must meet a threshold evidentiary burden before the court will embark
    on an inquiry into the reasons behind the exercise of discretion:
Anderson
,
    at para. 55. Although the ultimate burden of establishing abuse of process lies
    on the accused, once an accused has established this evidentiary foundation, the
    Crown may be required to provide reasons justifying its decision:
Anderson,
at para. 52. This evidentiary foundation is the main subject of dispute in
    this case.

[50]

The
    requirement for an accused to meet a threshold burden was explained by the Supreme
    Court in
Nixon
.
Nixon
dealt with the Crowns repudiation of a
    plea agreement. Justice Charron, writing for the court, commented at paras.
    62-63:

[T]here is good reason to impose a threshold burden on the
    applicant who alleges that an act of prosecutorial discretion constitutes an
    abuse of process. Given that such decisions are generally beyond the reach of
    the court, it is not sufficient to launch an inquiry for an applicant to make a
    bare allegation of abuse of process. For example, it would not suffice for an
    applicant to allege abuse of process based on the fact that the Crown decided
    to pursue the charges against him but withdrew similar charges against a
    co-accused. Without more, there would be no basis for the court to look behind
    the exercise of prosecutorial discretion.

However, the repudiation of a plea agreement is not just a bare
    allegation. It is evidence that the Crown has gone back on its word. As
    everyone agrees, it is of crucial importance to the proper and fair
    administration of criminal justice that plea agreements be honoured. The
    repudiation of a plea agreement is a rare and exceptional event. In my view,
    evidence that a plea agreement was entered into with the Crown, and
    subsequently reneged by the Crown, provides the requisite evidentiary threshold
    to embark on a review of the decision for abuse of process.

[51]

While
    it is clear from
Nixon
that a bare allegation on its own will not
    meet the requisite threshold, it does not follow that an accused must produce
    extrinsic evidence (i.e. evidence extrinsic from the settlement offer itself)
    in order to meet the burden. A requirement for extrinsic evidence would be
    irreconcilable with the Supreme Courts conclusion in
Nixon
that
    repudiation of a plea agreement in and of itself is not a bare allegation and
    meets the evidentiary burden. The impugned act of prosecutorial discretion may
    be sufficient on its own to meet the threshold burden.

[52]

Two
    avenues to meeting the threshold emerge from the Supreme Courts decisions in
Nixon
and
Anderson
. First, the threshold evidentiary burden will be met if
    the accused adduces evidence that the prosecutor exercised its discretion in
    bad faith or for improper motives: see
Anderson
, at para. 55.

[53]

Second,
    as in
Nixon
, the threshold may also be met where a discretionary
    decision is so rare and exceptional in nature that it demands an explanation.
Nixon
provides the best example of this second type of case. In the passage quoted
    above, Charron J., writing for the court, concluded that the fact that a plea
    agreement had been repudiated alone was sufficient to meet the threshold
    evidentiary burden. Although no evidence of bad faith was provided, the Supreme
    Court of Canada found that the act of repudiating a plea agreement was
    evidence that the Crown has gone back on its word. Because of the importance to
    the fair and proper administration of criminal justice of ensuring that plea
    bargains are honoured, repudiation of a plea bargain was a rare and
    exceptional event that demanded an explanation from the Crown. Ultimately, the
    explanation provided by the Crown satisfied the court that there was no abuse
    of process.

[54]

Justice
    Charron did not set out criteria for determining what else might qualify as a
    rare and exceptional event. In my view, the sole criteria cannot be that the
    decision or type of decision is infrequently made, as unusual decisions may
    result simply from the nature of a particular prosecution. I would infer from
Nixon
that a Crown discretionary decision may qualify as a rare and exceptional event
    when the decision itself raises the courts concern about the Crowns exercise
    of discretion. As quoted above, Charron J. noted that repudiation of a plea
    agreement was more than a bare allegation because it was evidence that the
    Crown had gone back on its word. A second important aspect of a rare and
    exceptional event is, in my view, that the Crowns decision must implicate
    interests that are of crucial importance to the proper and fair administration
    of justice. In
Nixon
, this interest was that plea agreements be
    honoured.

[55]

Meeting
    the threshold evidentiary burden is of course only the first step that an
    accused faces in proving an abuse of process. If the threshold burden is met,
    the Crown is given an opportunity to explain the reasons behind its exercise of
    discretion. If no explanation is forthcoming, an adverse inference may be made
    against the Crown. The burden remains on the accused to establish an abuse of
    process on a balance of probabilities. Even if an accused establishes an abuse
    of process, a stay will only be warranted in the clearest of cases.

(b)

Was the threshold evidentiary burden met in this case?

[56]

I
    would conclude the appellant has met the threshold evidentiary burden on the
    basis that the offer here was a rare and exceptional event. The offer itself
    and the circumstances in which it was made are sufficient to raise the courts
    concern about the Crowns exercise of discretion. It constituted, in effect, an
    offer made directly to the accused and, given its nature, had the potential to
    negatively affect the relationship between the appellant and his lawyers. The
    proper functioning of the relationship between an accused and defence counsel
    is crucial to the proper administration of criminal justice.

[57]

Below,
    I first outline why the relationship between an accused and defence counsel is
    essential to the proper and fair operation of the criminal justice system. I
    also explain why due to the role of the Crown, the Crown should not lightly
    take steps that will interfere with that relationship. Second, I set out the
    problems with the offer here, and why these problems suggest this offer was a
    rare and exceptional event requiring an explanation from the Crown. It follows,
    in my view, that the appellant has met the requisite evidentiary threshold. I
    would leave the issue of whether any of the circumstances complained of by the
    appellant constitute evidence of bad faith or could give rise to an inference
    of bad faith to be decided at a new hearing.

The relationship between the
    accused and defence counsel and the role of the Crown

[58]

The
    relationship between accused persons and their counsel is essential to the
    proper and fair administration of criminal justice. As Edward Greenspan, Q.C.,
    said in his well-known address on the role of defence counsel:

No person is required to stand alone against the awesome power
    of the government. Rather, every criminal defendant is guaranteed an advocate 
    a champion against a hostile world, the single voice on which he must rely
    with confidence that his interest will be protected to the fullest extent
    consistent with the rules of procedure and the standards of professional
    conduct.



And the role of the defence counsel, the obligation the
    community places on him, is a societal role  to defend the constitutional
    guarantees of the presumption of innocence and the requirement that in our
    democracy no one can lose freedom unless and until the state can prove guilt
    beyond a reasonable doubt. Our community can retain justice and freedom only as
    long as it gives standing to one person to take, within the limits of the law,
    the defendants side in court and to remind society when the scales of justice
    are tilting in the wrong direction. [Edward Greenspan, Q.C., The Role of the
    Defence Counsel in Canadian Society (The 1987 Empire Club of Canada Foundation
    Address, 19 November 1987).]

[59]

It
    is essential that an accused person have confidence in his or her
    representation, and that defence counsel be free to further the accuseds
    interests as much as possible. All lawyers have a duty to raise fearlessly
    every issue, advance every argument and ask every question, however
    distasteful, that the lawyer thinks will help the clients case and to
    endeavour to obtain for the client the benefit of every remedy and defence
    authorized by law: The Law Society of Upper Canada,
Rules of Professional
    Conduct
, Toronto, LSUC, 2014, s. 5.1-1, commentary 1.

[60]

Defence
    counsel in particular are obliged, pursuant to s. 5.1-1, commentary 9:

to protect the client as far as possible from being convicted,
    except by a tribunal of competent jurisdiction and upon legal evidence
    sufficient to support a conviction for the offence with which the client is
    charged. Accordingly, and
notwithstanding the lawyer's private opinion on
    credibility or the merits, a lawyer may properly rely on any evidence or
    defences, including so-called technicalities, not known to be false or
    fraudulent
. [Emphasis added.]

[61]

Defence
    counsel is therefore permitted to argue a weak defence and call the accused to
    testify even if the lawyers private opinion is that the client will be
    disbelieved. It is only where the lawyer
knows
the testimony to be
    false or fraudulent or believes it to be false by reason of an admission made
    by the accused that the lawyer may not offer the evidence.

[62]

If
    accused persons have reason to doubt the ability and faithfulness of their
    counsel, their defence is likely to suffer. If counsel has reason to hold back
    in the defence to protect their own interests, or even allows personal doubt
    about the merits to cloud their pursuit of the defence, the defence is also
    likely to suffer. Without a relationship of faith and confidence between an
    accused and his or her counsel, the obligations placed on defence counsel as
    set out by Greenspan  to defend the guarantees of the presumption of innocence
    and the burden of proof beyond a reasonable doubt  are put at risk.

[63]

Turning
    now to the role of the Crown, the function of the Crown is to be assistant to
    the Court in the furtherance of justice, and not to act as counsel for any
    particular person or party:
Boucher v. The Queen
, [1955] S.C.R. 16,
    at p. 25.

As Rand J. explained in
Boucher
, at pp. 23-24:

It cannot be overemphasized that the purpose of a criminal
    prosecution is not to obtain a conviction; it is to lay before a jury what the
    Crown considers to be credible evidence relevant to what is alleged to be a
    crime. Counsel have a duty to see that all available legal proof of the facts
    is presented; it should be done firmly and pressed to its legitimate strength,
    but it must also be done fairly. The role of prosecutor excludes any notion of winning
    or losing; his function is a matter of public duty than which in civil life
    there can be none charged with greater responsibility. It is to be efficiently
    performed with an ingrained sense of the dignity, the seriousness, and the
    justness of judicial proceedings.

[64]

The
    importance of the Crowns dual role as both advocate and minister of justice
    was set out in the "Martin
Report
" (The
    Honourable G. Arthur Martin, O.C., O. Ont., Q.C., LL.D., Chair,
Report of
    the Attorney General's Advisory Committee on Charge Screening, Disclosure, and
    Resolution Discussions
(Toronto: Ministry of the Attorney General, Queens
    Printer for Ontario, 1993)), at p. 33:

Crown counsels dual role as both advocate and minister of
    justice, fulfilled with the utmost integrity and sound judgment, is, like the
    complementary roles of defence counsel and the judge, essential to the
    administration of justice in Ontario.

[65]

The
    preamble to the Crown Policy Manual of the Ministry of the Attorney General of
    Ontario, 2005, echoes this view, at p. 2:

The role of Crown counsel as an advocate has historically been
    characterized as more a part of the court than an ordinary advocate.

A prosecutors responsibilities are public in nature. As a
    prosecutor and public representative, Crown counsels demeanor and actions
    should be fair, dispassionate and moderate; show no signs of partisanship; open
    to the possibility of the innocence of the accused person and avoid tunnel
    vision. It is especially important that Crown counsel avoid personalizing their
    role in court. [Citations omitted.]

[66]

The
    Crowns duty to act fairly, dispassionately and with a sense of the justness
    and dignity of the proceedings requires the Crown to treat with respect the
    relationship between an accused and defence counsel. The
Rules of
    Professional Conduct
refer to this obligation: a prosecutor should not do
    anything that might prevent the accused from being represented by counsel or
    communicating with counsel: s. 5.1-3, commentary 1. As outlined above, the
    justness of a particular proceeding may depend on the strength of the
    relationship between the accused and counsel. An act on the part of the Crown
    tending to undermine the relationship could have serious consequences for the
    accused and in the case of deliberate acts, would, except in exceptional
    circumstances, likely be out of keeping with the Crowns obligation as a
    minister of justice.

[67]

As
    I explain below, one very foreseeable consequence of the offer here was that
    the appellants relationship with his counsel could be undermined. In my view,
    because of the importance of the relationship between an accused and defence
    counsel and the Crowns special role, an offer made directly to the accused
    with this kind of foreseeable consequence raises the courts concern about the
    Crowns exercise of discretion. This offer constitutes a rare and exceptional
    event and it requires an explanation from the Crown.

The problems with the offer in this case

[68]

The
    offer made by the trial Crown in this case had the potential to undermine the
    appellants relationship with his counsel in three ways: first, the offer
    itself created a potential conflict of interest between the appellant and his
    counsel because it required the appellant to make a statement implicating his
    counsel in suborning perjury; second, the offer was contingent on the approval
    of the trial Crowns supervisor; and third, it appears the Crown attempted to
    resolve the matter directly with the appellant, although he was represented by
    counsel.

[69]

Contrary
    to the respondents submission, the problems with the offer do not require a
    presumption of bad faith on the part of the Crown. The concerns are apparent on
    the face of the offer itself, just as in
Nixon
, where the Crowns
    repudiation of a plea agreement on its face implicated the honour of the Crown
    without any need for a presumption of bad faith.

[70]

The
    offer created an instant potential conflict of interest between the accused and
    his lawyer that could have interfered with the solicitor-client relationship.
    The interests of the defence lawyers were suddenly pitted against those of
    their client, potentially undermining the appellants ability to rely on his
    lawyers and leaving him in a vulnerable position.

[71]

The
    trial Crown alleged the appellant had perjured himself with the knowledge of
    his counsel in his testimony on duress, a defence he intended to advance, and
    was about to advance at trial. Regardless of whether the appellant accepted or
    rejected the offer, the potential for conflict or a negative impact on his
    relationship with counsel existed.

[72]

The
    contingent nature of the offer exacerbated the potential conflict between the
    appellant and his solicitors. If the appellant had obtained independent legal
    advice as suggested, and had considered or even accepted the offer, but the
    trial Crown was unable to get approval for the arrangement, the appellants
    relationship with his counsel of choice would likely have been irreparably
    damaged. He could not have gone back to his counsel of choice, having agreed to
    or considered providing evidence that they had suborned perjury. It is also
    unlikely counsel could have believed the appellant had faith in their integrity
    and advice, knowing he had considered providing evidence that they had
    contravened their professional obligations.

[73]

In
    my view, the trial judge erred when she concluded there was essentially no harm
    in the offer because if the appellant had accepted, he would not have had a
    trial on the merits. The contingent nature of the offer created the possibility
    that the appellant, having accepted the offer, would have had a trial on the
    merits without his counsel of choice. Even considering the offer could have
    undermined the appellants relationship with counsel. It is important to bear
    in mind as well that the appellants three-week jury trial was supposed to
    begin on the day the offer was made. Had the appellant considered or even
    accepted the offer, he could have lost his representation very quickly and
    would have been forced to search for new counsel for a three-week jury trial on
    serious charges.

[74]

Had
    the offer not been conditional on approval by the Crowns superior, the risk to
    the appellants relationship with counsel would have been much less
    significant.

[75]

Finally,
    the trial Crowns conduct in making the offer appears to tread close to the
    ethical line drawn by s. 7.2-6 of the
Rules of Professional Conduct
.
    Section 7.2-6 provides that subject to the rules dealing with limited scope
    retainers and second opinions:

if a person is represented by a legal practitioner in
    respect of a matter, a lawyer shall not, except        through or with the
    consent of the legal  practitioner

(a)     approach or communicate or deal with the person   on
    the matter; or

(b)     attempt to negotiate or compromise the matter           directly
    with the person.

[76]

Plea
    negotiations fall within the scope of an attempt to negotiate or compromise
    the matter. This rule precludes a Crown from negotiating directly with a
    represented accused. The Crown is required to negotiate through or with the
    consent of the accuseds counsel. In the criminal context, the purpose of this
    rule is to preserve the accuseds relationship with counsel, which could be
    seriously undermined by direct negotiations, and to protect the accuseds best
    interests by requiring his or her advocate to be the exclusive channel for
    resolution discussions: see David Layton & Hon. Michel Proulx,
Ethics
    and Criminal Law
, 2d. ed. (Toronto: Irwin Law, 2015) at p. 659.

[77]

While
    the appellants trial counsel were present at this resolution discussion, the
    trial Crowns conduct appears to tread close to the line in two respects: it
    seems the offer was not made to the appellants counsel, but rather to the
    appellant himself, and the trial Crown appears to have advocated for the offer
    directly with the appellants father.

[78]

The
    nature of the offer suggests the offer was made directly to the appellant.
    Although the appellants lawyers were present, they would not have been able to
    advise him to accept the offer  such advice would have conflicted with their
    own interest. This is borne out by the trial Crowns suggestion that the
    appellant obtain independent legal advice. If the trial Crown was negotiating
    directly with the appellant and ignoring the presence of counsel, this could
    have been in violation of s. 7.2-6.

[79]

Similarly,
    the trial Crown apparently suggested to the appellants father that this offer
    would save time and money. To the extent that the suggestion by the trial Crown
    amounts to advocating in favour of the appellant accepting the offer and
    intended these comments to be communicated to the appellant through his father,
    rather than through counsel, s. 7.2-6 may also have been in play. Circumventing
    counsel by going through an accuseds relative might be viewed to be just as
    contrary to the rule as speaking directly to an accused.

[80]

The
    concern that the trial Crown might be viewed as having negotiated directly with
    the appellant contributes to my conclusion that the offer was a rare and
    exceptional event. Section 7.2-6 plays an important role in protecting an
    accuseds relationship with counsel and best interests. Conduct by the Crown
    suggesting a potential violation of the rule is a serious matter. Without an
    explanation, it raises the courts concern about the manner in which the trial
    Crown exercised his discretion.

[81]

For
    the reasons set out above, this offer could have had the effect of irreparably
    damaging the appellants relationship with counsel. Conflict between the
    appellant and his counsel was a predictable outcome of the offer. Indeed, the
    offer invited it. The potential effects of the offer are sufficient to raise
    the courts concern about the Crowns exercise of discretion.

[82]

The
    respondents argument that no harm was actually done to the relationship
    between the appellant and his trial counsel is not relevant at this stage of
    the analysis. The question here is not whether the fairness of the trial was
    compromised as a result of the offer, but rather, whether the Crowns exercise
    of discretion is a rare and exceptional event.

[83]

In
    my view, in light of the importance of protecting the relationship between an
    accused and defence counsel, and the problems inherent in the offer in this
    case, the appellant has met his threshold evidentiary burden. As in
Nixon
,
    the Crown is the only party who is privy to the reasons behind its decision to
    make this offer. While the ultimate burden of proving abuse of process remains
    on the appellant, the Crown must provide an explanation for its decision or
    risk an adverse inference against it.

(c)

What is the appropriate remedy in the circumstances?

[84]

The
    appellant asks this court to set aside his convictions and enter a stay of
    proceedings, or in the alternative, to order a new trial. In my view, it would
    not be appropriate for this court to determine whether a stay of proceedings is
    warranted. A new trial is required.

[85]

Although
    the appellant has met the threshold evidentiary burden, he has not yet proved
    abuse of process on a balance of probabilities. The parties proceeded in the
    court below on the basis that the issue of settlement privilege would be argued
    and decided by the trial judge first, and only after her decision would they
    argue the abuse of process issue. The trial judge ruled the evidence of the
    resolution discussion was privileged and inadmissible. The matter did not
    proceed to the abuse of process stage. The parties therefore never led evidence
    or made submissions specifically on the abuse of process point. The Crown was
    not afforded an opportunity to provide the reasons behind the trial Crowns
    decision to make this offer.

[86]

In
    my view, a new trial is required at which, if the abuse of process application
    is pursued, a hearing can be held where the parties can lead evidence and the
    Crown will have an opportunity to explain the offer to the court. The issues of
    whether the appellant has made out an abuse of process and whether a stay is
    warranted in the circumstances should be decided on a full record. The Crown
    should not be penalized for the absence of an explanation given the way the
    matter proceeded in the court below. The Crown should be permitted to provide
    an explanation or risk an adverse inference against it.

C.

Conclusion

[87]

For
    the reasons outlined above, I would allow the appeal and order a new trial.

Released: JS MAY 28, 2015

M. Tulloch J.A.

I agree. J. Simmons
    J.A.

I agree.  Paul
    Rouleau J.A.


