Court File and Parties

COURT FILE NO.: CR-18-4208 DATE: 20200110 DELIVERED ORALLY: January 10, 2020

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Jon-Paul Fuller Accused

Counsel: Martin Park, for the Crown Andrew Bradie and Brian Dube, for the accused

HEARD: January 6, 2020

Reasons for Judgment – Abuse of Process

pomerance j.

[1] Jon-Paul Fuller is charged with various offences alleging a large-scale marijuana grow operation. He seeks a stay of proceedings, alleging an abuse of process. He argues that the crown, having agreed to a resolution of the charges, should not have repudiated the plea agreement. In addition, the crown now proposes to call witnesses at trial who were told that the accused was going to plead guilty. The accused says that these events create an unfairness that amounts to an abuse of process and warrants a judicial termination of the proceedings.

[2] The crown resists the application. It is said that the crown was justified in repudiating the agreement, because the sentence fell well below the range for large scale marijuana cultivation. It is said that trial fairness is not affected because witnesses can be cross-examined on previous statements if their testimony changes. Nor, it is said, did the crown act in such a way as to affect the integrity of the process.

[3] The repudiation of a plea agreement is a matter involving prosecutorial discretion, subject to very limited review. It is not for me to review the reasonableness of the original plea agreement, or the reasonableness of the repudiation. The question is, rather, whether the state conduct meets the threshold of an abuse of process, in violation of s. 7 of the Canadian Charter of Rights and Freedoms (“Charter”). Having applied this elevated standard, I find that the cumulative effect of the state conduct in this case – the disclosure to crown witnesses and the subsequent repudiation – has deprived the accused of the right to a fair trial.

[4] I will elaborate on this conclusion in the reasons to follow.

The Facts

[5] The facts are not in dispute. The parties agree on the following chronology, set out in the accused’s factum:

Summary of Facts

3. The Applicant is standing trial on a four-count Indictment;

4. On June 8, 2018, in Assignment Court, pre-trial motions were tentatively scheduled for the weeks of April 8th and April 15th, 2019 and the trial was scheduled to commence May 13, 2019;

5. On April 8, 2019, the Applicant was arraigned and pleaded not guilty to all counts;

6. On April 17, 2019, the evidence and submissions on the Charter Application having been completed, the Charter Application was remanded to May 2, 2019 for decision at which time the evidence from the “greenhouse” was ruled admissible and the evidence from the Applicant’s vehicle was ruled inadmissible;

7. On May 14, 2019, the trial proper began with the Crown calling the Exhibits Officer whose evidence was followed by the calling of Sgt. Ribble, whose evidence in Chief caused concerns resulting in the Charter Application being re‑visited with the evidentiary component of that re‑visitation being concluded on May 17, 2019;

8. On May 17, 2019, the trial proper was adjourned to October 15, 2019 for continuation and the Charter Application was adjourned to Assignment Court on June 7, 2019 to schedule a date for submissions at which time they were scheduled for July 3, 2019;

9. On July 3, 2019, following submissions the Charter Application was remanded to October 2, 2019 for decision on the continuation of the Application;

10. On October 9, 2019, Counsel were notified that the ruling rendered on May 2, 2019 would stand and that the evidence from the “greenhouse” was admissible;

11. On October 10, 2019 Crown Counsel verbally suggested a possible resolution of the matter;

12. On October 11, 2019, Counsel for the Applicant obtained instructions to pursue resolution discussions and a Plea Agreement, subject to Judicial approval by Regional Senior Justice Thomas, was entered into on October 11, 2019;

13. As a result of the Plea Agreement having been entered into on October 11, 2019, arrangements were made with Trial Coordination on October 11, 2019 to have a judicial pre‑trial conducted by Senior Regional Justice Thomas on October 15, 2019 in Chatham;

14. As a result of the plea agreement having been entered into on October 11, 2019, Crown Witnesses who had previously been bound over to appear on October 15, 2019 were cancelled. Some were advised that the Applicant would be pleading guilty and some were further advised what the sentence would be. This notification took place before the pre-trial on October 15, 2019;

15. One such Crown Witness, Jack Kungel, posted on his private Facebook account, on October 14, 2019 @ 6:22 a.m. that “the muther fucker is going to jail” which generated numerous comments;

16. On October 15, 2019, the aforesaid JPT was conducted by Senior Regional Justice Thomas who approved the proposed resolution being a guilty plea to count one only for a 90 day intermittent sentence and a $25,000 fine plus ancillary orders and confirmed in open court that the matter was being adjourned to Windsor on October 16, 2019 for resolution;

17. On October 15, 2019, at 1:48 p.m., Wendy Houtmeyers, Crown Counsel Agent Supervision Unit for the Public Prosecution Service of Canada instructed crown counsel to repudiate the aforesaid Plea Agreement and Resolution;

18. On October 15, 2019, Crown Counsel informed counsel for the Applicant that he had been instructed to resile from the resolution; and

19. On October 16, 2019, as a result of this development, Regional Senior Justice Thomas remanded the matter back before the trial Judge.

Analysis

The Governing Principles

Prosecutorial Discretion

[6] The decision to repudiate a plea agreement falls within the ambit of prosecutorial discretion. Such decisions are not generally reviewable by the courts, given the constitutional role of the Attorney General, and the importance of such discretion to the proper administration of justice. As it was put in Krieger v. Law Society of Alberta, 2002 SCC 65, para. 32:

The court’s acknowledgment of the Attorney General’s independence from judicial review in the sphere of prosecutorial discretion has its strongest source in the fundamental principle of the rule of law under our Constitution. Subject to the abuse of process doctrine, supervising one litigant’s decision-making process __ rather than the conduct of litigants before the court __ is beyond the legitimate reach of the court. In Re Hoem and Law Society of British Columbia (1985), 20 C.C.C. (3d) 239 (B.C.C.A.), Esson J.A. for the court observed, at p. 254, that:

The independence of the Attorney-General, in deciding fairly who should be prosecuted, is also a hallmark of a free society. Just as the independence of the bar within its proper sphere must be respected, so must the independence of the Attorney-General.

We agree with these comments. The quasi-judicial function of the Attorney General cannot be subjected to interference from parties who are not as competent to consider the various factors involved in making a decision to prosecute. To subject such decisions to political interference, or to judicial supervision, could erode the integrity of our system of prosecution. Clearly drawn constitutional lines are necessary in areas subject to such grave potential conflict.

[7] The sentiment was reinforced in R. v. Anderson, 2014 SCC 41, [2014] S.C.J. No. 41, paras. 37 and 44:

This Court has repeatedly affirmed that prosecutorial discretion is a necessary part of a properly functioning criminal justice system: Beare, at p. 410; R. v. T. (V.), [1992] 1 S.C.R. 749, at pp. 758-62; R. v. Cook, [1997] 1 S.C.R. 1113, at para. 19. In Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339, at para. 47, the fundamental importance of prosecutorial discretion was said to lie, “not in protecting the interests of individual Crown attorneys, but in advancing the public interest by enabling prosecutors to make discretionary decisions in fulfilment of their professional obligations without fear of judicial or political interference, thus fulfilling their quasi-judicial role as ‘ministers of justice’”. More recently, in Sriskandarajah v. United States of America, 2012 SCC 70, [2012] 3 S.C.R. 609, at para. 27, this Court observed that “[n]ot only does prosecutorial discretion accord with the principles of fundamental justice — it constitutes an indispensable device for the effective enforcement of the criminal law”.

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

Review for Abuse of Process

[8] Prosecutorial discretion is not entirely immune from review. The court is empowered to intervene when the conduct – or misconduct – rises to the level of an abuse of process. The jurisdiction of the court to review state conduct for abuse of process was long recognized at common law, and is now subsumed by s. 7 of the Charter. There are two categories of abuse of process: 1) prosecutorial conduct that affects the fairness of the trial; and 2) prosecutorial conduct that “contravenes fundamental notions of justice and thus undermines the integrity of the judicial process”. See R. v. Nixon, 2011 SCC 34, at para. 36. The first category – often referred to as the “main” category – is at play in this case.

Repudiation of Plea Agreements

[9] While repudiation of a plea agreement is a facet of prosecutorial discretion, attracting limited review, it is nonetheless to be a rare and exceptional event. Resolution discussions play an integral role in the administration of criminal justice. It is critical that each party to the discussion be able to rely on representations made by the other. In Nixon, the Supreme Court of Canada stopped short of holding that such agreements must always be enforced. The court recognized that there may be circumstances in which a plea agreement would so undermine the public interest that the crown is entitled to resile from its original position. Nixon was one such case. The Supreme Court found no wrongdoing or unfairness, but set down the following guidelines:

a) the duty of counsel to honour plea agreements is not only ethically imperative but also a practical necessity, as these agreements dispose of the great bulk of the contentious issues that come before criminal courts;

b) The binding effect of plea agreements is a matter of utmost importance to the administration of justice, contributing, as it does, to a fair and efficient criminal justice system;

c) There may be instances where different crown counsel disagree about a plea agreement in a particular case. The vital importance of upholding such agreements means that, in those instances where there is disagreement, the crown may just have to live with the initial decision that has been made:

d) Plea agreements should only be repudiated in exceptional and rare circumstances, where they risk undermining the integrity of the court, or bringing the administration of justice into disrepute.

Application to This Case

[10] The accused argues that both categories of abuse of process are engaged in this case. It is said, on the main category, that there is a level of unfairness that violates s. 7 of the Charter. It is said, on the residual category, that the crown conduct undermined the integrity of the administration of justice. I have focused my analysis on the fairness category. Under this category, it is not necessary for the defence to establish proof of prosecutorial misconduct or bad faith. The key to this test is establishing prejudice. See Nixon, para 40.

[11] Two events converge to render the prospect of a trial of the accused to be unfair. The first is the improper disclosure to crown witnesses that the accused was going to plead guilty and go to jail. It is not clear whether the crown directed that this information be conveyed, or the officer did so on his own initiative. In either instance, the conduct is attributable to the prosecution. This disclosure was made before the judicial pre-trial, and before any agreement was actually in place. The information took on a public character when one of the witnesses posted an inflammatory message on his Facebook page.

[12] The second event is the crown repudiation of the plea agreement. Having told witnesses that there would be a plea, the prosecution then prevented the plea from taking place. Both the disclosure and the repudiation were within the control of the crown. Yet, they are at odds with one another. If there was a possibility of repudiation, witnesses should never have been told about the plea. Once witnesses were told about the plea, there should not have been a repudiation.

[13] I will deal first with the repudiation and then turn to the disclosure to crown witnesses.

The Repudiation

[14] While the accused bears the persuasive onus to establish a violation of s. 7 of the Charter, the onus is upon the crown to explain why and how it repudiated the plea agreement. In Nixon, Charron J. explained in para. 63:

… Further, to the extent that the Crown is the only party who is privy to the information, the evidentiary burden shifts to the Crown to enlighten the court on the circumstances and reasons behind its decision to resile from the agreement. That is, the Crown must explain why and how it made the decision not to honour the plea agreement. The ultimate burden of proving abuse of process remains on the applicant and, as discussed earlier, the test is a stringent one. However, if the Crown provides little or no explanation to the court, this factor should weigh heavily in favour of the applicant in successfully making out an abuse of process claim.

[15] There is a paucity of evidence explaining the repudiation in this case.

[16] It bears noting that the prosecutor who offered the plea deal was a senior lawyer, who had years of experience as a prosecutor for the Attorney General of Ontario and who, in his retirement, does agency work for the PPSC. Mr. Bailey had had carriage of this case from the outset. He successfully defended the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”) search warrant in the Charter litigation. He offered the resolution to the defence, with no suggestion that it would be subject to approval by other officials.

[17] Mr. Bailey made the offer contingent on judicial approval. That approval was granted by R.S.J. Thomas at the pre-trial. Therefore, the defence fully expected that the plea would take place the following day. The accused would not have committed to the plea agreement at that stage had it been known that it was yet subject to approval.

[18] Why did PPSC direct a repudiation? The sole evidence on this point is an e‑mail communication sent to Mr. Bailey by Ms. Houtmeyers of the PPSC, at 1:48 p.m., on October 15, 2019, just a few hours after the judicial pre-trial before R.S.J. Thomas. The e-mail reads as follows:

Good afternoon Paul,

I am writing to advise you that I have consulted with our Chief Federal Prosecutor regarding the proposed resolution of the matter of R. v. Fuller for a joint submission of 90 days, a $25,000 fine, forfeiture and ancillary orders. It is the position of PPSC that you are to resile from the position. To that end and according to Chapter 3.7 of the PPSC Deskbook, you should advise counsel in writing of the reasons for the repudiation, namely that the sentence falls outside the range of acceptable sentences for this offence.

If the accused wishes to resolve, please contact me for the position to be taken on sentence which will be in the range of 18-36 months. If the accused wishes to continue to trial, please set the earliest possible dates that court can offer. In the event that an 11(b) application is filed, please consult with the Agent Supervision Unit.

Please ensure that a copy of these instructions are printed and contained in the prosecution file.

Wendy

[19] Thus, the crown repudiated the agreement on the basis that the sentence fell “outside the range of acceptable sentences for this offence”. Mr. Park, in his submissions to the court, confirmed that this was, and still is, the position of the PPSC. It takes the position that that the proposed sentence could not be a fit disposition for the offence in issue because case law supports a range of 18-36 months.

[20] It may well be that, in the normal course, a large-scale marijuana grow operation would net a sentence between 18 and 36 months. However, I must assume that there were extenuating circumstances causing Mr. Bailey to offer the lenient disposition that he did. Sentencing is not about raw numbers considered in the abstract. Every case depends on its facts. Resolution discussions may engage complex, and nuanced considerations. The crown may have concerns about the credibility of witnesses, or other issues that affect the strength of its case. The agreement may be predicated on a plea to a lesser offence, or a less culpable account of the facts. There are any number of factors that may result in a sentence that, on the surface, falls outside of the traditional range of penalty. I do not know what those factors were in this case, but there clearly were such factors. The judicial approval of the resolution, by a senior and experienced judge, confirms that there was a proper basis for the disposition proposed by Mr. Bailey.

[21] The fact that the proposed resolution was defensible does not end the analysis. As held in Nixon, the question is not whether the original plea deal was reasonably defensible. The question must focus on the repudiation. The court is not to assess the reasonableness or correctness of the decision, but rather, is to look behind the decision for proof of prosecutorial misconduct, improper motive, or bad faith in the approach.

[22] The direction to repudiate in this case was issued a few hours after the judicial pre-trial. Yet, there is no evidence that PPSC officials inquired into the discussions at the judicial pre-trial, and/or the judicial approval of the resolution. Nor, apparently, were PPSC officials aware of the specifics of the agreement: the particular count or counts to which the accused would plead, the facts on which the plea was predicated, the frailties, if any, of the crown’s case, and any other considerations seen to justify a lesser penalty. The record would indicate that the repudiating officials assumed that the proposed sentence could never be fit given the nature of the allegations. However, the fitness of a disposition cannot be determined in a factual vacuum. Absent evidence that the PPSC officials inquired into and considered the basis for Mr. Bailey’s position, I must conclude that the repudiation was based on something less than a full and informed analysis.

[23] This case is therefore distinguishable from Nixon. There, the repudiation was predicated on a careful assessment of the prevailing law, governing principles and the public interest. The Assistant Deputy Minister determined that the young prosecutor who had proposed the plea has misinterpreted the strength of the case. The prospect of a plea to careless driving in a case with two fatalities would bring the administration of justice into disrepute. As outlined by Charron J. in para. 69:

…The ADM carefully reviewed the evidence that was the subject of concern and relied on legal opinions and took guidance from the Ontario Attorney General’s policy to instruct himself on the relevant considerations. Having satisfied himself that the original view of the trial prosecutor was incorrect and that the resulting plea resolution agreement would bring the administration of justice into disrepute, he acted expeditiously in communicating the decision to withdraw the plea resolution agreement to the respondent. He also concluded possible prejudice to the respondent and concluded that there would no such prejudice. The ADM’s conduct, viewed in its totality cannot be characterized as unfair, unreasonable, oppressive or irrational. The high threshold to find abuse of process has not been met here.

[24] In Nixon, Charron J. posited a scenario that would amount to an abuse of process. She invited consideration of an example in which “…the repudiation was made arbitrarily, without inquiry into the circumstances leading to the plea agreement and without regard to any resulting prejudice to the accused”. That example is this case. It amounts to an abuse of process because repudiation is to be a rare and exceptional event. It should not occur merely because prosecutors disagree about a disposition. On the record before me, PPSC officials did not have enough information to meaningfully assess whether the disposition would bring the administration of justice into disrepute. Nor was any consideration given to the prejudice that might be visited upon the accused. This would seem to be the type of case where, despite disagreement, the crown had to live with the offer made by one of its agents. Charron J. spoke of this in para. 48 of Nixon:

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.

[25] Even if the repudiation would not, standing alone, result in an abuse of process, it reaches that level of unfairness when considered against the backdrop of the disclosure to crown witnesses. I will turn to that now.

Fairness of Trial

[26] As noted above, the crown proposes to call witnesses at trial who were told of the accused’s intention to plead guilty and go to jail. It was acknowledged by Mr. Park for the crown, that information should not have been shared with witnesses before the judicial pre-trial had even taken place.

[27] Mr. Bradie, for the defence, argues that the witness’ evidence is irrevocably tainted. This is not a case in which one witness was presented with the account of another witness. The concern is of a more global and definitive nature. There could, perhaps, be no greater confirmation of the accused’s guilt than his own acknowledgment of it. There is very real risk that disclosure of the plea will influence the perception of witnesses and the testimony that they offer. Mr. Bradie noted the difficulty in conducting cross‑examinations. While the proposed plea is not admissible, the defence will be forced to raise it in challenging witness’ testimony. It will be difficult to probe the extent to which witnesses have, consciously or subconsciously, sculpted their evidence to accord with the perception of guilt.

[28] Mr. Bradie argued that it will also be difficult for the accused to take the stand and testify in his own defence, having been publicly identified as someone intending to plead guilty. There is a good reason for settlement privilege, which allows parties to explore resolution options without compromising their fair trial rights. Once the genie is out of the bottle, as in this case, there is no putting it back. There is no jury here, and a trial judge can disabuse her mind of the proposed plea. However, the defence says that the issue goes beyond potential impact on the trier of fact. It may be psychologically awkward for an accused to offer testimony that is inconsistent with an earlier and now public acknowledgement of guilt.

[29] Mr. Park, for the crown, argues that any tainting of witness testimony is a matter of weight rather than admissibility. He says that the court should not speculate about tainting before actually hearing from the witnesses. He further argued that, if the witness’ testimony changes, they can be cross‑examined on prior statements. He points out that accused individuals often explore resolution and then go on to testify in their own defence at trial.

[30] I agree with Mr. Park that the authorities discourage trial judges from speculating about witness tainting. In cases where witnesses have been exposed to extraneous material, courts have suggested that the testimony should generally be heard before presuming that the trial will be unfair. In R. v. Dikah, [1994] O.J. No. 858 (C.A.), Doherty J.A. stated, at para.40, that: “…judicial concerns with respect to the ultimate reliability of an as yet unheard witness are not, standing alone, a proper basis upon which to impose a judicial stay of proceedings”.

[31] Similarly, in R. v. Buric, [1996] 28 O.R. (3d) 737 (C.A.), at para. 25, affirmed , [1997] S.C.J. No. 38, Labrosse J. observed that: “It is difficult to foresee how a trial will unfold when the witness has not yet been heard”.

[32] Were tainting the only issue in this case, it might well be appropriate to hear from the witnesses to determine whether the defence has been compromised in its ability to challenge the evidence. However, tainting is not the only issue. Just as the repudiation was linked to the tainting of witnesses, the tainting of witnesses is linked to the repudiation. It is the combined impact of the state conduct that results in the unfairness. The accused should not be forced to confront witnesses who were improperly told of his intention to plead guilty at a trial that he had reason to believe was not going to occur. The trial of the accused would in my view result in an abuse of process and a violation of his rights under s. 7 of the Charter.

Remedy

[33] Having found a violation of s. 7 of the Charter, I must now consider the issue of remedy. Pursuant to s. 24(1) of the Charter, I am to determine what is a just and appropriate remedy in the circumstances.

[34] The defence requests a stay of the proceedings. A stay of proceedings is the most drastic remedy a criminal court can order. It marks a judicial termination of the proceedings. There will be occasions – the clearest of cases, when a stay will be warranted. However, other, less drastic remedies are also available. As L’Heureux Dube J. put it at para. 69 of R. v. O’Connor, [1995] 4 S.C.R. 411:

Remedies less drastic than a stay of proceedings are of course available under s. 24(1) in situations where the "clearest of cases" threshold is not met but where it is proved, on a balance of probabilities, that s. 7 has been violated. In this respect the Charter regime is more flexible than the common law doctrine of abuse of process. However, this is not a reason to retain a separate common law regime. It is important to recognize that the Charter has now put into judges' hands a scalpel instead of an axe -- a tool that may fashion, more carefully than ever, solutions taking into account the sometimes complementary and sometimes opposing concerns of fairness to the individual, societal interests, and the integrity of the judicial system.

[35] In R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, para. 32, the Supreme Court of Canada set out a three-part test for determining if a stay is appropriate:

The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54);

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” (ibid., at para. 57).

[36] Here, the first part of this test is clearly met. The prejudice to the accused’s fair trial rights would be “manifested, perpetuated or aggravated” through the conduct of the trial.

[37] The second part of the test is more difficult to assess. The question is whether there is an alternate remedy capable of redressing the prejudice. In this case, I must consider whether, having set aside the repudiation, the logical remedy is to require enforcement of the original plea agreement. On its face, this would seem to be a proportionate remedy. It would correct the prejudice flowing from the repudiation itself and would render academic the prejudice that would occur at trial. This is not a typical remedy under s. 24(1) of the Charter, but nor is it common to see repudiation of plea agreements. A stay would have a windfall quality, particularly in the absence of bad faith or deliberate misconduct by the prosecution. The mischief is the failure of the crown to stand by the plea agreement. By enforcing the plea agreement, the accused is placed in precisely the position he would have been in, but for the impugned state conduct.

[38] During submissions, I asked both crown and defence whether this would present as an alternative remedy. Both acknowledged that, if I found an abuse of process, this remedial option was open to the court.

[39] The difficulty may lie in implementing the remedy. At the time of the agreement, the matter was to proceed on the basis of agreed facts – whatever those facts were – and a joint position on penalty. The facts and other aspects of the plea agreement would ordinarily be canvassed in open court, to ensure that the disposition is understood by members of the public. The details of the agreement were not discussed outside the confines of the judicial pre-trial, though I expect they can be recreated through the recollections of those present. The bigger problem is that the crown, once a willing participant in the plea agreement, no longer supports the proposed penalty and may, by logical implication, object to a statement of facts that corresponds to that penalty. While the court can control its own process, and can set aside the repudiation, it cannot, should not, and will not, dictate the position to be taken by the crown on the sentencing hearing.

[40] Therefore, I appreciate that it may not be possible to genuinely recreate the sentencing hearing that would have taken place, but for the repudiation. Accepting that fact, I am still of the view that imposing the sentence originally contemplated by the plea agreement, and approved by a judge at that time, is a just and appropriate remedy, capable of redressing the prejudice, and more proportionate in its effect than a stay of the proceedings.

[41] I, therefore, direct that a plea proceeding be scheduled before me for the purpose of enforcing the plea agreement that was in place on October 15, 2019.

Original Signed by Justice Renee M. Pomerance Renee M. Pomerance Justice Released: January 10, 2020