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Plea Negotiations in Criminal Matters Subject to Settlement Privilege

September 18, 2023

Can Abuse of Process Applications Be an Exception to Settlement Privilege?

R. v. Delchev, 2015 ONCA 381

criminal defence lawyerThe Ontario Court of Appeal recently reviewed a case that dealt with strange requests from a Crown prosecutor and an accused/appellant who attempted to stay the charges due to abuse of process. 

The initial case dealt with drugs and weapons being found in two residences of the accused, leading to twenty-three charges on drug and weapons related offences. Sometime after, the accused and the Crown were involved in resolution discussions, where the accused alleged that Crown advised him to provide a statement asserting all of his evidence regarding duress was false, as well as to plead guilty  to a number of charges; if the accused were to do this, the Crown would suggest a conditional sentence in their submissions. 

The accused also alleged that the Crown directly addressed his father, telling him that this settlement would save them time and money, but told both of them that they should seek legal advice from a criminal defence lawyer.

The accused then became an applicant when he brought a motion suggesting the charges be stayed as there was an abuse of process. He said that the settlement offered by the Crown was proof of this. The judge decided that the details of the resolution discussion were protected by settlement privilege, and that there were no exceptions in this case. The case proceeded to trial, which found the accused guilty on sixteen out of twenty-three counts. 

These convictions were appealed, and the appeals court found that the trial judge made errors in refusing to allow the discussion to be admitted to fully investigate the abuse of process allegation. The appeals court also identified issues regarding the Crown’s conduct. 

The appeal was allowed, and a new trial was ordered. 

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