Court File and Parties
Court File No.: CR10-30000388
Date: 20120330
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: NIKOLAI DELCHEV , Applicant
AND:
HER MAJESTY THE QUEEN , Respondent
BEFORE: Low J. (Orally)
COUNSEL:
W. Glenn Orr and Michael Quigley, for the applicant , Nikolai Delchev
James Chaffe , for the respondent, Her Majesty the Queen
HEARD: March 28, 2012
RULING
[ 1 ] This is a second application for a stay of the prosecution on grounds of abuse of process.
[ 2 ] I will start with a brief summary of the history of this proceeding as it provides context for this application.
[ 3 ] This matter was scheduled for a three week trial commencing February 28, 2011. The prosecution arises out of the seizure of a quantity of firearms, ammunition, controlled substances and other objects found in Mr. Delchev’s residences on June 17, 2008.
[ 4 ] Mr. Delchev had launched an application to be heard at the commencement of trial for a stay of the prosecution on grounds that it was an abuse of process.
[ 5 ] The theory of the defence application was that one Jason Ramsay had forced Mr. Delchev through threats of harm to be in possession of the guns which were found in Mr. Delchev’s home and are part of the subject matter of the prosecution, that the same Jason Ramsay was the person who informed the police of Mr. Delchev’s possession of the guns, that the Crown knew that Jason Ramsay had forced Mr. Delchev to be in possession of the guns and yet had proceeded to prosecute Mr. Delchev knowing of the circumstances of his acquiring possession.
[ 6 ] A significant portion of the three weeks allotted to the trial was occupied by defence counsel’s motions to compel disclosure of the identity of the police informant.
[ 7 ] Defence called the evidence of Mr. Delchev. Defence also called, among others, Jason Ramsay. Mr. Ramsay’s evidence conflicted with that of Mr. Delchev.
[ 8 ] By the time the arguments were completed on the applicant’s Charter applications, almost the entirety of the three weeks allotted for the trial was used up, and there was no time for the trial proper within the time remaining.
[ 9 ] As a result of unavailability of one counsel or another in the following weeks and months, a new trial date was set for December 12, 2011.
[ 10 ] My ruling on Mr. Delchev’s Charter applications was released to the parties on September 19, 2011 but, at the request of defence, not to the public. The application for a stay of the proceeding on grounds of abuse of process was dismissed. The identity of the informant was not ordered to be disclosed.
[ 11 ] On the morning of December 12, 2011, court reconvened for the trial proper.
[ 12 ] At the request of counsel, I stood the matter down for a period of time to allow resolution discussions to take place.
[ 13 ] I was subsequently advised that the discussions were not successful.
[ 14 ] A jury was then picked and given preliminary instructions. Evidence was to be called starting the morning of December 13, when defence counsel, Mr. Orr, stated that he intended to bring a new application on behalf of Mr. Delchev to have the matter stayed for abuse of process and to have Crown counsel, Mr. Theman, removed. Mr. Orr advised that he would likely have to give evidence and that for that reason, a new counsel would have to be retained on behalf of Mr. Delchev to argue the application. Mr. Theman also indicated to the court that as he might have to give evidence, a new Crown counsel would have to be briefed to respond to the application. Time would be needed to retain and brief new counsel for the new stay application. The trial would not be able to proceed.
[ 15 ] With concurrence of counsel, I discharged the jury and a date for Mr. Delchev’s new application for a stay and a new date for the trial was set.
[ 16 ] In the course of announcing to the court that Mr. Delchev intended to launch a new application for a stay, Mr. Orr disclosed to the court his recollection of the settlement discussion between the Crown and defence that took place the previous morning. It is common ground that during that discussion, Crown counsel made an offer of resolution which was rejected by defence. Mr. Orr disclosed his version or recollection of the details of the exchange. It is apparent now that he did not obtain the consent of the Crown to do so.
[ 17 ] Crown counsel did not, at the time, express an objection to Mr. Orr’s disclosure of the settlement discussion that had occurred the day before. Crown counsel arguing the Crown’s response to Mr. Delchev’s application has made it clear, however, that the Crown does not waive the privilege surrounding the settlement discussion. Its position is that evidence of the discussion is inadmissible. It is conceded by Mr. Sapiano, counsel for the applicant on this application, that absence of objection at the time Mr. Orr made the disclosure to the court is not determinative.
[ 18 ] Although the respondent disputes many of the allegations made in the affidavits of Mr. Orr, Mr. Quigley, Mr. Delchev and Mr. Asen Delcheve, the Crown in its factum stated that it was prepared to respond to the applicant’s allegation of abuse of process on the basis of the following allegations:
a) there was a settlement discussion on December 12, 2011, with Assistant Crown Attorney Mr. Theman, D.C. Desousa, Mr. Orr, Mr. Quigley, the Applicant and the Applicant's father;
b) the Crown indicated that if the Applicant 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 Applicant's plea of guilty to certain charges;
c) the Crown advised that the Applicant 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 Applicant's father that the resolution would save a lot of time and money and that the Applicant should get independent legal advice regarding the offer;
f) the offer was immediately rejected by the Applicant;
g) due to the allegations made by the Applicant, Mr. Theman will not be conducting the trial of this matter, presuming it is heard on its merits.
[ 19 ] What took place outside the courtroom was a plea bargain discussion. An offer was made by Crown for resolution and the offer was not accepted. Prima facie, the discussion is protected by class privilege. The privilege cannot be unilaterally waived. See R. v. Bernardo , [1994] O.J. No. 1718 at 16, R. v. Lake , [1997] O.J. No. 5447 at para 44 , R. v. Delorme , 2005 NWTSC 34 () , [2005] N.W.T.J. No. 51 at 12 – 13, R. v. Cater , 2011 NSPC 75 () , [2011] N.S.J. No 561 at 16, 19 and Ahmadoun v. Ontario (Attorney General) , 2012 ONSC 955 at 18;281 C.C.C. (3d) 270.
[ 20 ] In my view, it was inappropriate for Mr. Orr to have disclosed to the court his version of the details of the settlement discussion without waiver of privilege by the Crown, and equally inappropriate for the applicant to have compounded the disclosure by adducing affidavit evidence from Mr. Orr, Mr. Quigley, Mr. Delchev and Mr. Asen Delchev, the father of the applicant, deposing to their respective recollections of the settlement discussion.
[ 21 ] On behalf of Mr. Delchev it is argued that the settlement communications privilege was waived by the Crown because before the settlement negations took place, Mr. Theman suggested that Mr. Asen Delchev., the father of the accused, be present for the discussion. I note that Mr. Orr deposes at paragraph 15 of his affidavit that that he understood from speaking to Mr. Theman before the subject plea negotiation took place that Mr. Asen Delchev would in some way be involved although he did not learn at that point what the involvement would be.
[ 22 ] There appears to be a dearth of authority on the point. On behalf of Mr. Delchev, Mr. Sapiano urges that the court should analogize from the cases which have considered where a solicitor-client privilege, another class privilege, may be vitiated by the presence of a third party when the communication is made. My attention is drawn to Regina v. Dunbar , 1982 3324 (ON CA) , 68 C.C.C. (2d) 13 at p. 36 per Martin J.A.:
An essential condition of the solicitor-client privilege is that the communication in respect of which privilege is claimed has been made in circumstances which indicate that it was made with the intention of confidentiality. Generally, if the communication is intended to be revealed to a third person, the element of confidentiality will be lacking. Similarly, in most cases the presence of a third person when the communication was made indicates that the communication was not intended to be confidential. But the presence of a third person may not have that effect; for example, it will not have that effect if it is reasonably necessary for the protection of the client’s interest: [see vol.8] Wigmore on Evidence , 3 rd ed. (McNaughton Revision, 1961), pp. 599- 603; McCormick on Evidence , 2 nd ed. [(1972)], pp. 187-89; Cross on Evidence , 5 th ed. [(1979)], p. 289.
[ 23 ] In Dunbar , the issue arose in the context of a joint retainer by co-accused where counsel interviewed all the accused together in preparation for a joint defence. Subsequently, there was a falling out among the co-accused and the argument was made that since the co-accused were opposed in interest at the trial, the privilege no longer applied. The court held, however, that the loss of the privilege where a controversy has arisen between parties is confined to situations in which the jointly represented parties have become pitted against each other in litigation inter se and is not applicable where there is a falling out in the context of a lis vis-à-vis a third party.
[ 24 ] In the instant case, there was evidence given by Mr. Delchev on his first application for a stay of proceedings concerning his relationship with his father starting at page 24 of the transcript of February 28. The evidence shows a relationship involving a significant degree of dependence upon his father, monitoring of Mr. Delchev’s financial affairs by his father and a concern on the part of Mr. Delchev that his conduct might incur his father’s displeasure. During the first three weeks of this proceeding, during the Charter arguments, Mr. Delchev Sr. was in court with his son.
[ 25 ] At paragraph 9 and 10 of Mr. Quigley’s affidavit, Mr. Quigley deposes
… We walked together over to the vestibule at the end of the corridor to discuss the proposed conditional sentence. As we walked over to the vestibule Mr. Orr pointed out to Mr. Theman that the Applicant, Mr. Delchev, was present and Mr. Theman indicated that was not a problem.
As we went through the entrance to the vestibule we saw Mr. Delchev’s father, Mr. Asen Delchev, in the area and, again, Mr. Orr pointed out to Mr. Theman that Nick’s father was present. Again, Mr. Theman indicated that was okay.
[ 26 ] In my view, the presence of Mr. Delchev Sr. did not break the circle of settlement privilege. Mr. Delchev had been in court day after day in support of his son. The primacy of their relationship, particularly Mr. Delchev’s financial interconnection and relative dependence on his father as well as his desire not to provoke his father’s ire, is apparent from Mr. Delchev’s evidence on the Charter application.
[ 27 ] From Asen Delcheve’s affidavit at para. 12 to 17 it may be inferred that Mr. Theman was of the belief, and in my view, with some justification given the evidence of Mr. Delchev on February 28, that Mr. Delchev Sr. had a pecuniary interest in the length of the proceeding and therefore a pecuniary interest in the settlement if there was one.
[ 28 ] In my view, it was clear to all of the lawyers, including Mr. Orr and Mr. Quigley, that what was about to ensue was a settlement discussion. It is fair to infer that they all knew that the discussion was privileged. Mr. Delchev Sr.’s presence was either at the request of, or, at the least, the acquiescence of Mr. Delchev and his lawyers. It seems to me unbelievable that Mr. Delchev’s intention in having his father present was to vitiate the privilege that would prima facie attach to the discussion that was to follow. Rather, the reasonable inference is that Mr. Delchev Sr.’s presence was to be of assistance to the accused in the settlement negotiations.
[ 29 ] I therefore do not accept the argument that no settlement privilege ever arose or that it was waived because Crown counsel agreed that Mr. Delchev’s father could be present.
[ 30 ] I turn next to whether an exception to the settlement privilege arose.
[ 31 ] As noted by Vertes J. in R. v. Delorme , at para. 13 , the notable exceptions to the privilege are when it is necessary to prove that a settlement was reached or if the communications contain threats or other illegal action.
[ 32 ] An example of the first exception occurred in R. v. Bernardo , where a plea bargain was reached with the witness Homolka, a component of which was an agreement by the witness to testify against the accused. The bargain and the circumstances around it are relevant to the credibility of the testimony of the witness and impact directly on the right of the accused to make full answer and defence.
[ 33 ] That is not the situation here as no bargain was reached. There can be no impact on the trial of the accused as it will pick up where it was interrupted, with a new jury.
[ 34 ] The second kind of exception involves prosecutorial misconduct: illegal action, bad faith or improper motive.
[ 35 ] Plea bargaining is an activity central to the effective administration of justice. It is probably fair to say that without resolutions short of trial, our system of criminal justice would collapse under its own weight. The crafting and making of offers of resolution, the negotiation of plea bargains and the concluding of plea bargains are within the core prosecutorial powers of the Crown and are generally immune from review.
[ 36 ] There must be an evidentiary basis of prosecutorial impropriety, consisting of evidence extrinsic to the settlement communications themselves, before the court should embark on an inquiry regarding the prosecutorial discretion to make the offer or the offer itself. See R. v. Power , 1994 126 (SCC) , [1994] S.C.J. No. 29 at 12 and R. v. Nixon , 2011 SCC 34 () , [2011] S.C.J. No. 34 where, at para 62, Justice Charron writing for the court, wrote
Quite apart from any such pragmatic considerations, there is good reason to impose a threshold burden on the applicant who alleges that an act of prosecutorial discretion constitute 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.
[ 37 ] In my view, there is no extrinsic evidence of prosecutorial impropriety. There is no evidence that leads either inexorably or reasonably to the inference that Crown counsel was, in making the offer to Mr. Delchev, suggesting to Mr. Delchev that he do something unlawful. There was no threat.
[ 38 ] At least two people know whether Jason Ramsay forced, by threats, Mr. Delchev to be in possession of the guns found in his home: Jason Ramsay and Mr. Delchev. They gave conflicting testimony. Is Mr. Delchev any more credible than Mr. Ramsay? Did Mr. Delchev’s evidence have the ring of truth to it even in the absence of contradictory testimony of Mr. Ramsay? The Crown--and Mr. Theman—are under no obligation to believe Mr. Delchev as opposed to Mr. Ramsay. There is no evidence before me that the Crown either believed or knew that Mr. Delchev was telling the truth and that Mr. Ramsay was lying.
[ 39 ] Where the offer seeks acknowledgement from Mr. Delchev that Mr. Orr and Mr. Quigley knew that their client was lying, the offer is parallel to offers of sentencing consideration in exchange for information directed at other individuals suspected of breaking the law. In this, I do not accept that solicitors are immune from criminal investigation through the products of a plea bargain. Nor am I able to accept the proposition that the Crown knew that there was no basis for any suspicion of Mr. Orr and Mr. Quigley.
[ 40 ] It is said that this is evident from the fact that Mr. Theman did not voice his suspicion in open court during the Charter application that Mr. Orr and Mr. Quigley knew that their client was lying.
[ 41 ] I am not persuaded that Mr. Theman’s refraining from making an allegation of misconduct against Mr. Orr and Mr. Quigley in open court during Mr. Delchev’s trial leads to the inference that the Crown did not have the suspicion.
[ 42 ] Reasonable counsel may reasonably disagree as to the propriety of making allegations of defence counsel misconduct during the trial of an accused as opposed to waiting until the conclusion of the trial. Reasonable counsel may reasonably disagree as to the proper recipient of a complaint about solicitor misconduct. In any case, the question of whether or not the Crown had any bona fide suspicion is an evidentiary matter where the onus is on the applicant and the applicant has not met it.
[ 43 ] The applicant alleges that the Crown’s offer was an attempt to interfere in Mr. Delchev’s relationship with his solicitor. Had the offer been accepted, there would have been a conflict between Mr. Delchev and his lawyers. But then there would have been no trial on the merits. Here, the offer was rejected and there is no breach of Mr. Delchev’s relationship with his solicitors.
[ 44 ] It is an agreed fact that Mr. Orr and Mr. Quigley will remain as counsel for Mr. Delchev for the trial and that the Crown counsel who made the settlement offer, Mr. Theman, will not be Crown counsel at trial.
[ 45 ] The making of the offer therefore will have no effect on the solidarity between Mr. Delchev and his lawyers. The matter will proceed before a jury on the merits and there will be no impact on a fair trial. This is a result of the offer being rejected. Had the offer been accepted, there would have been no impact on a fair trial as there would have been no trial.
[ 46 ] In my view, and as I have noted above, there is no extrinsic evidence demonstrating prosecutorial impropriety in making the offer. Just as it is not sufficient extrinsic evidence of prosecutorial impropriety to make a bald allegation that it is an abuse of process to continue the prosecution against one accused where the Crown had withdrawn charges against a co-accused (see R. v. Nixon , supra ), it is not, in my view, extrinsic evidence of prosecutorial impropriety for the applicant and his lawyers to deny the wrongdoing of which the Crown seeks evidence through plea bargain. Mr. Delchev may or may not have been lying in his evidence. His lawyers may or may not have known whether or not he was lying. Those are matters for another day and another forum. Accordingly, the court ought not to embark on a review of the Crown’s discretion in crafting and making the offer of resolution.
As I have found the settlement discussions to be privileged and that there is no extrinsic evidence pointing to prosecutorial impropriety, I find the evidence of the settlement discussions inadmissible and I dismiss the application for a stay.
Low J.
Ruling delivered orally : March 30, 2012
Date of Release: August 24, 2012