Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Peter Charles Croteau
Crown application for Gardiner hearing and Defence application in the alternative to strike guilty plea
Before: Justice P.K. Doody
Heard on: October 21, 2019
Reasons for Decision released on: October 22, 2019
Counsel:
- R. Sonley, counsel for the Crown
- A. Paciocco, counsel for the defendant
Decision
Context and Issues
1The defendant Peter Croteau was charged with 5 offences under the Controlled Drugs and Substances Act and 1 count of possession of currency knowing it to have been obtained by the commission of an indictable offence. The trial of those charges, and the hearing of a motion to stay the proceedings on the basis of an alleged breach of s. 11(b) of the Charter, were scheduled to begin on January 7, 2019.
2On January 2, 2019, the defendant entered a plea of guilty to two counts – one of conspiracy to traffic in marijuana of an undisclosed amount, and one of trafficking in marijuana under 3 kilograms.
3After the guilty pleas were entered, an Agreed Statement of Facts was entered. Mr. Croteau did not admit, in that document, that the amount of marijuana which he had conspired to traffic was over 3 kilograms. I found Mr. Croteau guilty of those two counts. I ordered a pre-sentence report, with the consent of both the Crown and defence. Because the pre-sentence report would take some time, the matter was adjourned to March 21, 2019 for sentencing submissions.
4On March 21, 2019, counsel asked for a brief adjournment because a matter had arisen. On March 29, 2019, I was advised that on March 20, 2019, the day before sentencing submissions were to be made, Crown counsel had advised defence counsel that if Mr. Croteau did not admit that the amount of marijuana he had conspired to traffic was over 3 kilograms, she would seek to lead evidence of that fact in a Gardiner hearing.
5The defence is not prepared to admit that fact. The Crown seeks to prove it. The issue before me was whether I should allow the Crown to do so.
6The issue was argued before me on June 18, 2019. Mr. Sonley, who has appeared for the Crown throughout this application, was not Crown counsel who entered into the plea agreement or when the plea was entered on January 2, or on March 21.
7On July 31, 2019, I released a written decision in which I held that, considered objectively, the Crown and the defence entered into an agreement that Mr. Croteau would plead guilty to these two counts, abandoning his right to a trial and his right to apply for a determination of whether his right to a trial within a reasonable time had been infringed, and in return the Crown agreed that the facts relied upon for the sentencing would be the facts set out in the Agreed Statement of Facts.
8I was not prepared, at that time, to determine whether that finding disentitled Crown counsel from leading evidence to prove the amount of marijuana which the defendant had conspired to traffic. I indicated that I had reviewed the decision of the Supreme Court of Canada in R. v. Nixon, 2011 SCC 34, which had not been the subject of submissions before me. I said that that decision may well be relevant to the issue of whether the Crown may lead evidence on a Gardiner hearing even though it had implicitly agreed that it would not do so. I asked to hear counsel on this point.
9During the submissions on June 18, 2019, Crown counsel submitted, as an alternative to his submission that there was no agreement of the sort which I ultimately found, that the defendant be allowed to strike his guilty plea. Defence counsel had not asked that the plea be struck. I indicated in my July 31 decision that I would like to hear defence counsel on the issue of whether Mr. Croteau wanted his plea to be struck if I concluded that the Crown may lead evidence on a Gardiner hearing.
10I also indicated in my decision of July 31 that if defence counsel wished to file an application to strike his client's guilty plea, I would allow him to file evidence on that application. I said that if the defendant did not apply then to have the Court strike his plea, I would not permit a future application on the basis of the matters then before me.
11The Court of Appeal released its decision in R. v. Espinoza-Ortega, 2019 ONCA 545, which deals with striking a guilty plea, on June 28, 10 days after submissions had been made to me. In my July 31 decision, I invited counsel to address this case as well when they returned before me.
12On September 19, the Court of Appeal released its decision in R. v. Charley, 2019 ONCA 726, in which the court held that the presumptive limit on post-verdict delay, for the purposes of s. 11(b) of the Charter of Rights, was 5 months.
13On September 26, defence counsel filed a Notice of Application seeking:
(a) a stay of proceedings as a result of an alleged breach of s. 11(b) after the defendant entered his plea of guilt on January 2, 2019;
(b) in the alternative, a ruling that the Crown not be allowed to file evidence on a Gardiner hearing; and
(c) in the further alternative, that the defendant be granted leave to have his pleas of guilty struck out.
14Defence counsel made it clear that he was only asking for his client's guilty plea to be struck if his application for a stay of proceedings was denied and the Crown was allowed to lead evidence of the amount of marijuana on a Gardiner hearing.
15On September 26, 2019, defence counsel filed and served an affidavit of his client in which he swore that when he pleaded guilty he did so on the understanding that he was only admitting to the facts contained in the Agreed Statement of Facts which was entered as an exhibit; that he understood that the Agreed Statement of Facts was the entire factual basis upon which he would later be sentenced; and that he would not have instructed his counsel to abandon his right to a trial and his s. 11(b) application, pending before the trial judge, if he knew that the Crown would later try to change the parameters of the plea by seeking to prove additional facts that were not part of the Agreed Statement of Facts.
16On October 11, 2019, defence counsel served and filed a supplementary application record containing the evidentiary basis for his s. 11(b) application – the transcripts of all post-verdict court appearances, relevant correspondence, a chart summarizing the post-verdict court appearances, and an affidavit of the defendant.
17On October 16, 2019, Crown counsel wrote to the Court, enclosing his factum on the issues relating to R. v. Nixon and striking of the plea, and stating that he had not addressed the 11(b) application in light of "the late delivery of the Applicant's s. 11(b) materials, the voluminous nature of the materials, and the fact that the October 21st date was set aside for the purposes of the R. v. Nixon arguments and Application to Strike Plea only."
18On October 21, 2019, I asked Crown counsel whether he wished to cross-examine the defendant on either of his affidavits. He stated that he would not be cross-examining him on his September 26 affidavit in support of his application to strike the guilty plea, but he had not yet determined whether he would cross-examine him on his October 11 affidavit filed in support of his s. 11(b) application.
19I indicated that I had intended to propose that we establish at least the evidentiary record on the s. 11(b) application by having any cross-examination occur that day. Given Crown counsel's position, we could not do so, although defence counsel indicated that he was prepared to proceed in that fashion.
20In order to use the court time as productively and efficiently as possible, I decided that I would hear submissions on the R. v. Nixon issue (which could also be described as the remedy issue) on the Crown's application to hear evidence on a Gardiner hearing, and on the defendant's alternative application to strike the plea. I indicated that once my decision on those issues was made, we would reconvene and determine the best way to go forward. The date of January 7, 2020 had already been reserved to hear the Crown evidence on the Gardiner hearing if I ruled that that evidence could be led.
The Crown is Not Entitled to Lead Evidence to Prove New Facts Not in the Agreed Statement of Facts
21Both counsel placed much reliance on the reasons and decision of the Supreme Court in Nixon. Not surprisingly, they drew different things from the decision.
22Ms. Nixon drove her motor home through an intersection and struck another vehicle, killing a husband and wife and injuring their young son. She was charged with several Criminal Code offences, including dangerous driving causing death, dangerous driving causing bodily harm, and parallel charge for impaired driving. Counsel initially entered into a plea agreement whereby Ms. Nixon would plead guilty to a charge of careless driving under the provincial Traffic Safety Act with a joint sentence recommendation of an $1,800 fine, in return for which the Crown agreed to withdraw the Criminal Code charges. When the higher levels of the Attorney-General's office learned of the agreement, Crown counsel was instructed to withdraw the plea agreement and proceed to trial. The issue before the Supreme Court was whether the repudiation of the plea agreement could be reviewed by the courts.
23The Supreme Court of Canada held that the repudiation of the plea agreement in that case could not be reviewed by the courts.
24The Court held that acts of prosecutorial discretion cannot be reviewed by the courts other than by the abuse of process doctrine. That doctrine allows courts to provide a remedy in narrow circumstances "where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings." (R. v. Jewitt, [1985] 2 S.C.R. 128 at pp. 136-7, cited with approval in Nixon, para. 34)
25Defence counsel does not take the position that it would be an abuse of process in the sense described in Jewitt to allow the Crown to lead evidence to prove aggravating facts on a Gardiner hearing, even though the Crown had implicitly agreed that it would not do so. Crown counsel submits that that is the end of the matter, because the courts cannot interfere to prevent him resiling from a plea agreement unless doing so is an abuse of process.
26The Supreme Court in Nixon did not, however, hold that the courts could never enforce a plea agreement entered into by Crown counsel and accused persons. Quite the contrary. The Court held that the courts were only prevented from doing so when the acts of Crown counsel at issue were acts of prosecutorial discretion. Charron J. wrote for the Court at paragraphs 47 and 48:
… the binding effect of plea agreements is a matter of utmost importance to the administration of justice. It goes without saying that plea resolutions help to resolve the vast majority of criminal cases in Canada and, in doing so, contribute to a fair and efficient criminal justice system.
48 Of course, there may be instances where different Crown counsel will invariably disagree about the appropriate plea agreement in a particular case. Given the number of complex factors that must be weighed over the course of plea resolution discussions, this reality is unsurprising. However, the vital importance of upholding such agreements means that, in those instances where there is disagreement, the Crown may simply have to live with the initial decision that has been made. To hold otherwise would mean that defence lawyers would no longer have confidence in the finality of negotiated agreements reached with front-line Crown counsel, with whom they work on a daily basis. Further, if agreements arrived at over the course of resolution discussions cannot be relied upon by the accused, the benefits that resolutions produce for both the accused and the administration of justice cannot be achieved. As a result, I reiterate that the situations in which the Crown can properly repudiate a resolution agreement are, and must remain, very rare. [emphasis in original]
27Charron J. relied on the Court's earlier decision in Krieger v. Law Society of Alberta, 2002 SCC 65, to explain what kinds of decisions by Crown counsel were acts of prosecutorial discretion. Charron J. noted at para. 21 of Nixon that in Krieger, the Court drew a distinction between acts of prosecutorial discretion and tactics or conduct. The latter was subject to court supervision, the former not. Iacobucci and Major JJ. wrote in Krieger, in passages cited by Charron J. in Nixon:
"Prosecutorial discretion" is a term of art. It does not simply refer to any discretionary decision made by a Crown prosecutor. Prosecutorial discretion refers to the use of those powers that constitute the core of the Attorney General's office and which are protected from the influence of improper political and other vitiating factors by the principle of independence.
Without being exhaustive, we believe the core elements of prosecutorial discretion encompass the following: (a) the discretion whether to bring the prosecution of a charge laid by police; (b) the discretion to enter a stay of proceedings in either a private or public prosecution, as codified in the Criminal Code, R.S.C. 1985, c. C-46, ss. 579 and 579.1; (c) the discretion to accept a guilty plea to a lesser charge; (d) the discretion to withdraw from criminal proceedings altogether: R. v. Osborne (1975), 25 C.C.C. (2d) 405 (N.B.C.A.); and (e) the discretion to take control of a private prosecution: R. v. Osiowy (1989), 50 C.C.C. (3d) 189 (Sask. C.A.). While there are other discretionary decisions, these are the core of the delegated sovereign authority peculiar to the office of the Attorney General.
Significantly, what is common to the various elements of prosecutorial discretion is that they involve the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for. Put differently, prosecutorial discretion refers to decisions regarding the nature and extent of the prosecution and the Attorney General's participation in it. Decisions that do not go to the nature and extent of the prosecution, i.e., the decisions that govern a Crown prosecutor's tactics or conduct before the court, do not fall within the scope of prosecutorial discretion. Rather, such decisions are governed by the inherent jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum. [First emphasis added [by Charron J.]; second and third emphases in original; paras. 43 and 46-47.]
28At paragraph 30 of Nixon, Charron J. wrote:
30 In my view, the question of whether the ADM's decision to repudiate the plea agreement is an act of prosecutorial discretion, although disputed in this appeal, is just 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.
29I apply the same test to the issue before me. As Crown counsel put it, the issue is whether the Crown may lead evidence in a Gardiner hearing even if it has entered into a plea agreement in which it had agreed to not do so. That is not a decision as to whether a prosecution should be brought, continued or ceased, and if so, what it should be for. It is a decision about tactics or strategy to take in court. I conclude that that decision is not an act of prosecutorial discretion. It is one in which the courts may intervene even in the absence of an abuse of process.
30The Crown does not have an untrammeled right to introduce evidence at a sentencing hearing under s. 723 or 724, even though s. 723(2) provides that "the court shall hear any relevant evidence presented by the prosecutor or the offender." Although this provision uses the normally mandatory language "shall", the court retains its ability to refuse to admit evidence where its probative value is exceeded by its prejudicial effect. (R. v. P.M., 2012 ONCA 162 at para. 25.) As Charron J. wrote for the majority of the Supreme Court at para. 32 of R. v. Angelillo, 2006 SCC 55, [2006] 2 S.C.R. 728, on a sentencing hearing:
… the judge can and must exclude otherwise relevant evidence if its prejudicial effect outweighs its probative value such that the offender's right to a fair trial is jeopardized.
31The Alberta Court of Appeal dealt with the issue of requiring Crown counsel to limit evidence on a sentencing hearing where an agreed statement of facts had been entered into in R. v. Hunt, 2002 ABCA 155. Crown counsel in that case tendered a booklet of photographs that were the subject of the charge but had not been included in the Agreed Statement of Facts entered into by counsel. Defence counsel objected, submitting that the law provided that an agreed statement of facts binds both sides and cannot be deviated from by tendering additional evidence. The Court of Appeal rejected that submission on the facts of that case, because defence counsel knew, when he entered into the Agreed Statement of Facts, that the Crown would attempt to introduce the photos. The Court wrote, at paragraphs 17 and 18:
… There is real value in an agreed statement of facts for both the accused and the Crown. The accused avoids surprises, and undoubtedly can negotiate what facts will be agreed to. The Crown also has an unequivocal admission on the record from which the accused would have great difficulty in resiling. Further, such an admission will resist subsequent modification by well-intentioned probation officers, psychologists or psychiatrists who will often report (as they must) a version of events given to them which may substantially differ from that to which the Crown and the accused have agreed. Such additional facts cannot be considered relevant when counsel for the accused and the Crown have explicitly agreed to relevant facts.
18 The Crown cannot however obtain a guilty plea on an agreed set of facts, and then spring another set of facts on the accused at sentencing. But that is not what happened here. From our review of the record, counsel for the Crown had made it clear before the plea that he would attempt to introduce the photographs at sentencing. Equally, counsel for the accused had told the Crown that he would object to their introduction. This was no ambush. Nor was it contrary to an agreement or adjudicative fairness.
19 In this case the Respondent cannot be said to have been taken by surprise. The ordinary principles of proof and relevance will apply. See s. 724 of the Criminal Code.
32Mr. Croteau was taken by surprise when the Crown sought to introduce further evidence to prove the amount of marijuana which he conspired to traffic. He agreed to plead guilty on the basis of an agreed statement of facts. He did so on the basis of what I have found was an agreement by Crown counsel to not rely on any additional facts. In doing so, he abandoned his right to a trial. He also abandoned his right to have the trial judge determine whether the delay before trial was a breach of his s. 11(b) rights. Allowing the Crown to resile from that agreement would be unfair to Mr. Croteau. It would be contrary to the important public policy goals described by Charron J. at paras. 47 and 48 of Nixon.
33I conclude that the Crown is not permitted to lead evidence to establish additional facts on the sentencing hearing. The Crown application to do so is dismissed.
It is Not Necessary to Decide Whether to Allow the Defendant to Withdraw His Plea of Guilty
34The defendant sought to withdraw his plea of guilty only if the Crown was allowed to lead evidence on additional facts on the sentencing hearing. I have ruled that the Crown is not permitted to do so. Consequently, I need not decide whether to allow the defendant to withdraw his guilty plea.
Next Steps
35I will convene court at the first reasonable opportunity to determine the next steps. I urge both parties to expeditiously consider the most efficient way to move forward.
October 22, 2019
Signed: Justice P.K. Doody