Criminal Law

OCA points to concerns about Crown conduct; Crown stays charges

The Crown has stayed 16 firearms and drug-related charges against a man after the Ontario Court of Appeal had ordered a new trial for him and said the trial Crown appeared to “tread close to the ethical line.” Toronto Sun

“It’s a really positive outcome for Mr. Delchev,” says Toronto criminal lawyer Jill Presser, who represented him.

The Crown told the court during a recent appearance that it was no longer in the public’s interest to prosecute the matter, Presser tells

The case has a long history that includes abuse of process allegations related to the conduct of the Crown.

More than five years ago Nikolai Delchev was charged with drug- and weapons-related charges following a police search of two homes. Police obtained search warrants for the residences as a result of information from a confidential informant. Part of the defence theory was that a man had forced Delchev to store the guns by threatening him with physical harm.

In R. v. Delchev, 2015 ONCA 381 (CanLII), he appealed his convictions of 16 counts of firearms- and drug-related offences, including one count of possession of cocaine for the purpose of trafficking, in October 2014 following a trial by judge and jury. His primary ground of appeal was that the trial judge erred in failing to order a stay of proceedings for an abuse of process.

On appeal, Delchev sought a stay of proceedings, or in the alternative, an order for a new trial at which his abuse of process claim could have been fully litigated.

Court documents show the abuse of process application was brought forward following a resolution discussion with the trial Crown in which Delchev alleges the prosecutor offered to recommend a conditional sentence to the Crown-in-charge based on a guilty plea to certain charges. The offer also hinged on whether the appellant would provide an induced statement indicating certain evidence he had given in pre-trial proceedings was false and that his trial counsel, who was not Presser at that time, knew it was false.

The Crown asserted the discussion was privileged but agreed to respond to the application on the basis of a summary of the appellant’s allegations concerning what had taken place, say court documents.

The trial judge found that the discussion was privileged and that, in any event, there was no evidence that the conditional offer was made without foundation or in bad faith. She dismissed the application.

This effectively meant that Delchev couldn’t call any evidence to establish this alleged misconduct by the Crown, explains Presser.

The matter went to trial and Delchev was convicted and served some time.

Presser became involved when the case went to the Court of Appeal earlier this year.

When the appellate court handed down its decision in May, it closely analyzed the law of evidence around settlement privilege.

The court held that the evidence around the Crown’s conduct in this matter should have been admitted at trial and that the defence satisfied the threshold evidentiary burden to establish abuse of process by the Crown.

“I would conclude the appellant has met the threshold evidentiary burden on the basis that the offer here was a ‘rare and exceptional event.’ The offer itself and the circumstances in which it was made are sufficient to raise the court’s concern about the Crown’s exercise of discretion. It constituted, in effect, an offer made directly to the accused and, given its nature, had the potential to negatively affect the relationship between the appellant and his lawyers. The proper functioning of the relationship between an accused and defence counsel is crucial to the proper administration of criminal justice,” Justice Michael H. Tulloch wrote for the panel.

In connection with the offer the Crown made to Delchev, the court said it “had the potential to undermine the appellant’s relationship with his counsel in three ways: first, the offer itself created a potential conflict of interest between the appellant and his counsel because it required the appellant to make a statement implicating his counsel in suborning perjury; second, the offer was contingent on the approval of the trial Crown’s supervisor; and third, it appears the Crown attempted to resolve the matter directly with the appellant, although he was represented by counsel.”

The Court of Appeal also said the trial Crown’s conduct in making the offer "appears to tread close to the ethical line drawn by s. 7.2-6 of the Rules of Professional Conduct.”

The court noted, however, that while the appellant met the threshold evidentiary burden, he had not proved abuse of process by the Crown on a balance of probabilities.

"Meeting the threshold evidentiary burden is of course only the first step that an accused faces in proving an abuse of process. If the threshold burden is met, the Crown is given an opportunity to explain the reasons behind its exercise of discretion. If no explanation is forthcoming, an adverse inference may be made against the Crown. The burden remains on the accused to establish an abuse of process on a balance of probabilities," said the court.

The OCA held that a new trial was required for the matter and if the abuse of process application is pursued, a hearing could be held where the parties could lead evidence and the Crown will have an opportunity to explain the offer to the court.

That didn’t happen as the Crown decided not to re-prosecute Delchev.

Presser says the appellate court ruling is a good decision in terms of what constitutes improper conduct by the Crown.

“The Court of Appeal also asserts the importance of the relationship between defence counsel and an accused,” she says.

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