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PROCEDURE - Plea bargains

Thursday, February 27, 2020 @ 9:06 AM  


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Application by the defendant Fuller for a stay of proceedings. Fuller was charged with various offences alleging a large-scale marijuana grow operation. He took the position that the Crown, having agreed to resolution of the charges, should not have repudiated the plea agreement. The Crown now proposed to call witnesses at trial who were told that Fuller was going to plead guilty. Fuller submitted that those events created an unfairness that amounted to an abuse of process and warranted a judicial termination of the proceedings. The Crown took the position that it was justified in repudiating the agreement because the sentence fell well below the range for large-scale marijuana cultivation. The Crown submitted that trial fairness was not affected because the witnesses could be cross-examined on previous statements if their testimony changed. The Crown further submitted that it did not act in such a way as to affect the integrity of the process.

HELD: Application allowed in part. The repudiation of a plea agreement fell within the ambit of prosecutorial discretion and was subject to very limited review. It was not for the court to review the reasonableness of the original plea agreement or the repudiation, but to determine whether the state conduct met the threshold of an abuse of process, in violation of s. 7 of the Canadian Charter of Rights and Freedoms (Charter). There was improper disclosure to Crown witnesses that Fuller was going to plead guilty and go to jail. 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. Fuller 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 Fuller would result in an abuse of process and a violation of his rights under s. 7 of the Charter. Imposing the sentence originally contemplated by the plea agreement, and approved by a judge at that time, was a just and appropriate remedy. That remedy could address the prejudice and was more proportionate in its effect than a stay of the proceedings.

R. v. Fuller, [2020] O.J. No. 85, Ontario Superior Court of Justice, R.M. Pomerance J., January 10, 2020. Digest No. TLD-February242020007