Plea agreements are exceptionally common in today's criminal justice system. To the chagrin of many, they are the grease that keeps the justice system moving. In the vast majority of cases, plea agreements are honoured by both sides. But occasionally one side or the other renegs. A recent summary appeal case where the Crown repudiated a plea agreement is R. v. R.N.M.. The Defendant was charged with dangerous driving. His counsel reached an agreement with the Crown whereby the charge would be dropped and he would plead guilty to the much less serious provincial offence of careless driving. The provincial charge was accordingly laid by the police, but when the time came to execute the plea agreement a new Crown counsel overruled his colleague and refused to go through with the deal. His expressed reason for repudiating the agreement was that his colleague was "very, very junior" and that the proposed plea was inappropriate in the circumstances.

Defence counsel sought to challenge the Crown's decision by bringing an abuse of process application but was unsuccessful at trial and the defendant was convicted of dangerous driving. On appeal, Justice Hill examined the issue of repudiation of plea agreements by the Crown and made several illuminating comments.

Justice Hill stressed the importance of plea resolution discussions in the criminal justice system, and agreed with the Martin Committee that agreements thereby reached are in the nature of undertakings, which "must be strictly and scupulously carried out". He also agreed with the Martin Committee's view that plea agreements must be respected otherwise the system will suffer, given the large number of cases that are resolved through such means. As the Martin Committee concluded in its commentary to Resolution 53, "the situations in which Crown counsel can properly repudiate a resolution agreement are, and should be very rare". To be precise, and as Justice Hill accepted, repudiation is only proper where the agreement, if carried out, would bring the administration of justice into disrepute. (It is worth adding that support for the Martin Committee view is also found in the recent Ontario Court of Appeal decision of R. v. Tallon.)

Of course, the fact that Crown counsel acts unethically in repudiating a plea agreement does not as a matter of logic mean that the defendant must have a remedy. Yet Justice Hill for all intents and purposes found such to be the case. He accepted that Crown decisions regarding plea agreements were usually given great deference by the courts, the result of prosecutorial discretion. But where a plea agreement was repudiated, the decision to repudiate is not accorded the same sort of deference and thus is subject to review by the court (paras. 54-62). If the Crown fails to provide a satisfactory explanation for the repudiation, the Court will proceed on the basis that none exists. And where the court concludes that the agreement has not been repudiated for a proper reason (i.e. as defined by the Martin Committee), the s. 7 Charter rights of the defendant will have been violated and a remedy will probably be required (para. 55).

A few subsidiary points made by Justice Hill are worth emphasizing. First, a finding that s. 7 has been violated does not require bad faith or flagrant impropriety on the part of the Crown (para. 41). This point is not news given previous case law on abuse of process, but is comforting to hear nonetheless. Second, the defendant does not have to show personal prejudice in the sense of having compromised his or her position in reliance on the agreement in order to establish a s. 7 breach. As Justice Hill notes, it may be enough to show that the repudiation undermines the appearance of fair and equal justice (para. 56). Third, while the s. 7 analysis is carried out using the doctrine of abuse of process, the Court can consider remedies less drastic than a stay. In particular, the most appropriate remedy may be an order enforcing the plea agreement (para. 70).

Applying the law to the facts in R.N.M., Justice Hill was faced with a haphazard trial record that made it difficult if not impossible to ascertain the circumstances surrounding the decision to repudiate the plea agreement. The good intentions of all parties to save time by relying on oral submissions as opposed to affidavit or viva voce evidence led to a factual dog's breakfast. Justice Hill was thus unable to determine whether the second Crown counsel's decision to repudiate fit within the Martin Committee criterion, and thus ordered a new trial at which a proper evidentiary basis for the abuse application could be provided.

In all, R.N.M. is a very helpful decision to defence counsel who seek to enforce a repudiated agreement. It adopts the Martin Committee's view that the Crown can only rarely reneg, where such is required prevent harm to the administration of justice. Probably more importantly, the judgment sends a clear message to Crown counsel that repudiation of an agreement must be justified and will be subject to searching review by the courts. A prosecutor who is tempted to overrule a colleague's decision will be much less likely to do so now that it is clear that s/he cannot hide behind a blanket assertion that the Crown's discretion must be given great deference.

But a word of caution must go out to defendants who think that R.N.M. prevents the Crown from repudiating in all circumstances. Such is NOT the case. In particular, there is a strong line of authority that allows the Crown to repudiate where the defendant has not lived up to his or her side of the bargain. This line of cases was expressly referred to with approval by Justice Hill, and is not the weaker in the wake of R.N.M.