Nova Scotia to offer plea bargains on minor cases to make way for criminal trials

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The chief judge of Nova Scotia's Provincial Court says prosecutors will be offering prompt plea bargains on "relatively straightforward matters" such as minor property crimes and has warned this approach could expand to more serious crimes.

The new approach, outlined in a memo from Chief Judge Pamela Williams addressed to all criminal-law practitioners in the province, comes in response to the Supreme Court of Canada's ruling last summer setting down strict time limits for criminal trials.

Since the Supreme Court's ruling in a case known as R v Jordan, lawyers across Canada have sought stays of proceedings in more than 800 criminal cases, of which more than a dozen involve homicide or attempted-murder charges, a Globe and Mail review found this week. In two cases in Ontario and Alberta, courts granted stays in first-degree murder cases. Both rulings are under appeal. A stay is the legal system's method for bringing proceedings to a halt. When prosecutors enter a stay, they have a year to reinstate the charges; a stay entered by a judge means the case is dead.

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The Chief Judge's memo describes a pilot project in Halifax and Dartmouth in which prosecutors will attempt to resolve minor cases quickly. She mentions as examples "first-offence breathalyzer or refusal matters," minor property crimes, breaches of court orders and low-level assaults.

The approach could "potentially be used in mid-range cases, such as break-and-enters involving businesses or dwellings, and more serious assaults, including those inflicting bodily harm," the memo says. It adds that the approach should not be used for sexual assault, sexual offences against children, significant property loss or significant violence.

Prosecutors are independent from judges, but Chief Judge Williams explains in her memo that for three years a group involving legal aid, police, federal and provincial prosecutors, judges and defence lawyers have been working to develop a more efficient system. She provides contact information for Chief Crown Attorney Paul Carver in Halifax for those seeking more information. The Feb. 7 memo is written on the letterhead of the Nova Scotia Judiciary's executive office, and signed by the Chief Judge, not the working group.

Nova Scotia is not alone in emphasizing early-resolution efforts by prosecutors. Manitoba has had a special unit of prosecutors since June, 2015, a year before the Jordan ruling, identifying charges that can be resolved quickly. Alberta has set up early-resolution teams of five senior prosecutors in Edmonton and six in Calgary to screen cases and propose best-offer plea bargains. The British Columbia Attorney-General's department says its prosecutors have been focusing on early resolution since a government-commissioned report by Vancouver lawyer Geoffrey Cowper in 2012.

Nova Scotia tried a similar early-resolution approach in 2005, with a senior Halifax prosecutor solely responsible for reviewing all files and determining what cases should receive offers and what an appropriate offer would be. Under the new approach, all prosecutors in the Halifax-Dartmouth area would have that authority.

The 2005 program foundered, according to an evaluation commissioned by the prosecution service, because the prosecution did not make the offers enticing enough for accused people and their lawyers. Accused people and their lawyers tended to hang on until their trial to see what the outcome would be.

Stan MacDonald, a veteran defence lawyer in Halifax, says he shares that view of why the previous attempt at early resolution failed. "It didn't provide a sufficient incentive to plead guilty early. Because the sentences that were being recommended were very much in the ballpark of what you'd expect to get if you went to a full trial."

The offices of Chief Judge Williams and Mr. Carver referred The Globe to Martin Herschorn, the provincial Director of Public Prosecutions, for comment. He said early resolution is designed to provide incentive to accept responsibility and plead guilty, in appropriate circumstances.

"This is a very modest approach initially. We're trying to bring the decision-making forward. This is not giving the shop away. This is applying the case law and coming up with a sentencing position at the low end of the approved range of sentences to try to encourage an accused person who is prepared to acknowledge their guilt to plead guilty at an earlier stage."

It is not clear how early resolution of drunk-driving matters would work. A first offence for blowing over .08 blood-alcohol concentration on a breathalyzer test, or refusing to take the test, carries a mandatory minimum sentence of a $1,000 fine, and a driving prohibition of one year from the date of conviction. Mr. Herschorn said early resolution would not mean a reduction of charges; it simply moves the sentencing aspect forward. "In this jurisdiction, courts are known to set a benchmark position with respect to sentencing for first offences on breathalyzer matters. Those won't be changed. We're going to respect that."

Andrew Murie, executive director of Mothers Against Drunk Driving, an anti-drunk driving advocacy group, expressed concern that plea bargaining would take away from the work his group and others have done to make drunk-driving "an unacceptable crime."

The Supreme Court established timelines of 30 months in superior courts and 18 months in provincial court, from the time police lay a charge until the completion of a trial. The court said the criminal-justice system had developed a "culture of complacency" about delay.