Plea Negotiations in Criminal Matters Subject to Settlement Privilege

R. v. Delchev, 2015 ONCA 381:

[22]       The appellant asks this court to find that the evidence of the plea bargaining discussion was admissible for the purpose of alleging abuse of process by the Crown. In my view, while the evidence of the discussion is subject to settlement privilege, I agree with the appellant that the trial judge erred in holding no exception to that privilege applied. The evidence of the discussion should have been admitted for the purpose of the appellant’s abuse of process application.

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(b)         Is the discussion protected, prima facie, by settlement privilege?

[24]       Settlement privilege is a class privilege, creating a “prima facie presumption of inadmissibility”: Sable Offshore Energy Inc. v. Ameron International Corp.,2013 SCC 37, [2013] 2 S.C.R. 623, at para. 12.  Settlement privilege applies only if the following conditions are met:

(1)     A litigious dispute must be in existence or within     contemplation.

(2)     The communication must be made with the   express or implied intention that it would not be      disclosed to the court in the event negotiations           failed.

(3)     The purpose of the communication must be to        attempt to effect a settlement. [A.W. Bryant, S.N.         Lederman & M.K. Fuerst, Sopinka, Lederman &           Bryant: The Law of Evidence in Canada, 4th ed.           (Markham: LexisNexis Canada, 2014), at p. 1039; citations omitted.]

[25]       The appellant takes issue with the third of these requirements. He argues the offer was not made for the purpose of achieving settlement or compromise, but rather “with some other object in view and from wrong motives”: Pirie v. Wyld (1886), 11 O.R. 422 (H.C.).  

[26]       While the Crown’s offer was unusual, I am not prepared to infer that resolving the appellant’s charges was not at least some part of the purpose of the offer. Settlement does not have to be the only purpose of a settlement negotiation in order for privilege to apply. It is not uncommon for a resolution offer to include an agreement that an accused will testify for the Crown in another matter. The resolution discussion here was arranged so that the Crown could make an offer of settlement, albeit a highly unusual one. All the parties involved understood that a settlement discussion was occurring. 

[27]       Settlement privilege applies to the discussion and the evidence from the discussion is prima facie inadmissible on the abuse of process motion. However, based on the circumstances of the discussion and the content of the offer, I would conclude the evidence is admissible as an exception to settlement privilege.  I will explain.