R. v. Griffin, 2009 ABQB 696 (CanLII)
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[55] It is common ground between the parties that settlement negotiation privilege also applies in negotiations between criminal defence counsel and the Crown. The applicability of this privilege to criminal cases was discussed by Sopinka, Lederman & Bryant, The Law of Evidence in Canada (3rd ed.) (Markham: LexisNexis, 2009) at para. 14.314:
With respect to persons facing criminal charges, there is a public interest in preserving the confidentiality of plea negotiations between such accused and their counsel, and the Crown. A privilege is necessary to encourage full and frank discussions with a view to coming to a resolution of the matter. There is a substantial saving by the public and a resulting benefit to the administration of justice ‑ including victims and witnesses ‑ in resolving such cases on a just basis.
[56] There is also strong support in Canadian case law for the application of settlement negotiation privilege to the criminal law. The policy rationale for criminal settlement negotiation privilege was discussed by Lesage A.C.J. (as he then was) in R. v. Bernardo, [1994] O.J. No. 1718 (Ont. Ct. (Gen. Div.)). Counsel for the accused sought disclosure of information relating to the negotiations between the Crown and Ms. Homolka with respect to her plea agreement to testify against Mr. Bernardo. The Crown took the position that such plea negotiations were privileged. Lesage A.C.J.(at para. 16) accepted that plea negotiation privilege exists:
I agree with the Crown’s submissions that there should be a recognized privilege surrounding plea discussions vis‑a‑vis the accused and the Crown. There are many reasons in the nature of public policy that would suggest that such a privilege does exist or ought to exist in order to encourage Crown and defence to have full, frank and private negotiations in criminal cases. I believe, as in civil cases, settlement negotiation privilege ought to exist. The rules or [sic] this Court concerning pre‑hearing conferences in criminal matters contemplate that those negotiations will normally occur in private and that they will remain confidential, unless a resolution is achieved in which case the discussions would normally be disclosed in court. I am of the view that the public interest is well served by encouraging such frank and full discussions between counsel for the accused and counsel for the Crown. The saving to the public and the resulting benefit to the administration of justice in resolving cases that ought to be resolved is substantial. Although there may be exceptions to that confidentiality or privilege such as obstruction of justice, or other issues, I am of the view that public policy would dictate that there be a confidentiality concerning such negotiations. That privilege applies in the sense that the information disclosed will not be used against that person.
[57] Lesage A.C.J. ultimately ruled that this privilege should not extend to negotiations that result in agreements where an individual agrees to testify against a co‑accused for the Crown, because the records of the negotiations were not being sought for use against Ms. Homolka, but for the defence of another person.
[58] In R. v. Lake, [1997] O.J. No. 5447 (C.J.), the Crown took the position that if defence counsel in resolution discussions attributed a statement to his or her client, that statement and the discussions that led to that statement are no longer covered by solicitor‑client privilege. The Crown argued that although there is a public interest in the promotion of resolution discussions, negotiation privilege must yield to the stronger public interest in the search for the truth. McCombs J. restricted Bernardo to its particular facts, where the co‑accused Homolka no longer faced any risk of having the plea negotiations used against her, and where Bernardo had a s. 7 right to make full answer and defence. In a case where such considerations are absent, the privilege remains much stronger (at para. 51):
In my view, a ruling favourable to the Crown in the circumstances of a case such as this would have a profound chilling effect upon resolution discussions, an essential component of the administration of justice, and would do irreparable damage to the public interest in the proper administration of justice. This public interest is of such importance that it must outweigh all other considerations.
[59] Likewise, in R. v. T.J.C., [1997] N.W.T.J. No. 141 (S.C.), Vertes J. strongly endorsed settlement negotiation privilege in criminal negotiations. Defence counsel had written a “without prejudice” letter to the Crown which included the accused’s recollection of certain facts of the alleged offence, and set out a proposal for a joint submission on sentence in exchange for a guilty plea. Police attended the accused’s cell and, in the course of interrogating the accused, referred to the letter sent by counsel for the accused. Several months later, in response to another letter from defence counsel offering a plea deal, Crown counsel wrote a letter that rejected the plea offer. This letter from the Crown also warned:
[S]tatements made to you by Mr. C. may become part of the Crown’s case, should this matter proceed to trial. Unless we can tender evidence of Mr. C.’s statements by agreement, you may be required as a Crown witness.
[60] Defence counsel subsequently was issued a subpoena. At trial, the new Crown counsel stated the Crown would not be calling defence counsel as a witness. Defence counsel brought a motion for a stay of proceedings on the basis of these and other incidents. In reference to the “without prejudice” letter, Vertes J. stated (at para. 32):
I know of no reason why [settlement negotiation] privilege does not apply as well to criminal cases. Indeed, I think there is a stronger case to be made that the privilege applies in criminal cases because of the liberty interests and constitutional rights at stake. I note in passing only that such a privilege had been extended to plea bargaining communications in United States criminal law. Perhaps the reason why there is no obvious Canadian case on this point is that the point is obvious.
[Emphasis added.]
[61] In R. v. Larocque reflex, (1988), 124 C.C.C. (3d) 564 (Ont. Ct. (Gen. Div.)), the Crown wrote to counsel for the accused with an offer of a joint submission in exchange for a guilty plea. Counsel for the accused responded with a letter stating that the accused accepted the offer and would plead guilty. The accused reneged, and did not plead guilty as planned. The matter proceeded to trial and the Crown took the position that the letter from counsel for the accused was admissible to prove the accused’s guilt. The trial judge, citing Bernardo and Lake, concluded that the communications were privileged and inadmissible and the privilege remained in effect even though the accused reneged on the offer to plead guilty. The court distinguished the situation from the civil context, where a settlement itself is not covered by settlement negotiation privilege, because in a criminal context a plea agreement is not enforceable against the accused.
[62] Settlement negotiation privilege applies equally to communications made by Crown counsel in the course of settlement negotiations. For example, in R. v. Hainnu, [1997] N.W.T.J. No. 76 (S.C.) (QL), counsel for the accused attempted to use a comment made by a Crown prosecutor at a pre‑trial conference as the basis for an abuse of process application, but the comment was deemed to be protected by privilege. Similarly, an attempt by the accused to refer to a pre‑trial resolution offer by the Crown during sentencing submissions was rejected as a violation of settlement negotiation privilege in R. v. Roberts, 2001 ABQB 520 (CanLII), 2001 ABQB 520, 289 A.R. 127 at paras. 59‑62 (cited with approval in R. v. Tkachuk, 2001 ABCA 243 (CanLII), 2001 ABCA 243, 159 C.C.C. (3d) 434)).
[63] In R. v. Bernard, 2002 ABQB 747 (CanLII), 2002 ABQB 747, 392 A.R, 204, Veit J. also emphasized (at para. 43) that settlement negotiation privilege exists even in the absence of criminal practice rules against the production of without prejudice communications, such as existed in Bernardo.
[64] Most recently, in R. v. Delorme, 2005 NWTSC 34 at paras. 9-32, 198 C.C.C. (3d) 431, Vertes J. revisited the issue of criminal settlement negotiation privilege and summarized the Canadian authorities on the matter. He found (at para. 33) that “[t]he common theme in those cases where the plea negotiation privilege has been set aside is that of the accused’s right to make full answer and defence,” and concluded that rather than applying an “innocence at stake” test to determine whether the privilege should be overcome, an O’Connor‑like “likely relevance” test was more appropriate (para. 45).
[65] Based on these authorities, I conclude that criminal plea bargain privilege is a recognized form of privilege and should be sedulously protected in the interests of encouraging fair, reasonable, and efficient disposition of criminal cases, in the interests of the public, victims, witnesses, and accused persons.
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