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When "Unfettered Discretion" Isn't

 R v Delchev is about an attempt by the crown to get the accused to throw his own lawyer under the bus.  The crown offered a better deal if the accused testified that he lied under oath, and his own lawyer knew he was doing it.

This case stresses the importance of  the relationship between you and your lawyer, and, it explains how to assess whether to attack the exercise of crown discretion.

Normally, the crown has “unfettered discretion.”  But when the crown attempts to damage the client-lawyer relationship, it might be an abuse of process. The lesson?  Do watch carefully; if it doesn’t smell right, let me know, we can hold them accountable

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R v Delchev

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At paragraph 56 of the decision the court spells out why crown discretion must be scrutinized on some occasions.  What seems clear to others is sometimes lost on a crown, when they live in a world where they know their behind the scenes actions will not be second guessed.  Second guessing keeps people honest in all halls of power.  The court says:

"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."

In the end, the conviction was overturned and sent back for a new trial, so the “abuse of process” allegation could be fully argued.

Please consult a lawyer for advice about your individual situation.  This site and its information is not legal advice, nor is it meant to be.  Feel free to get in touch by electronic mail, letters, or phone calls.  Contacting us does not create a solicitor-client relationship.  Until a solicitor-client relationship is established, please withhold from sending any confidential information to us.

Lawrence Forstner, Criminal Lawyer in Oshawa, Expert Qualifications and Specialized Training:
Former Crown Attorney;  Former Probation & Parole Officer;  Ontario Domestic Assault Risk Assessment (ODARA), Sex Offender Risk Assessment, Strategic Initiatives in Community Supervision (STICS), Sex Offender Relapse Prevention, Substance Use / Anger Management Group Leader/ Trainer.   ( )

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Click on R v Delchev to read the whole case.

Because of the crown's untoward offer, the accused asked for a stay of his charges; the crown was engaging in “abuse of process".  Abuse of process will only get a stay “in the rarest of cases” and not normally just because of an act of crown discretion that we might disagree with.  But when it goes to an issue that is important to the administration of justice, the court will intervene.