In the swirling controversy that followed the plea of Rahim Jaffer to a charge of careless driving in Orangeville, Ont., serious questions have been raised about the propriety of the negotiated deal struck with the Crown. The following are a series of questions and answers that I hope will address some of the lingering issues in the case:
1) Did the police and the Crown both have to agree to the plea bargain?
The decision rested with the Crown although the police would likely have been consulted. The Crown retained the right to overide any strenuous objections of the police to a plea bargain reached with the defence.
2) Did the judge hearing the matter, Justice Douglas Maund, have any discretion to refuse the plea agreement being proposed?
It was solely the prosecution's right to withdraw the charges of over '80' and possession of cocaine. The only charge before the court for the judge to consider was the charge of careless driving. Justice Maund was in a position to accept the plea and impose a sentence exclusively for that Highway Traffic Act charge.
3) Can the Attorney General appeal?
There was a joint position advanced by the Crown and defence for a $500 fine on the charge of careless driving. As a result of the criminal charges being withdrawn by the Crown, those charges cannot be appealed.
4) Could the Attorney General decide to reinstitute the criminal charges?
Jaffer pleaded guilty to the Highway Traffic Act charge based on the Crown's decision to withdraw his remaining charges. The Crown would not be in a position to reassess the merits of the case and proceed with the withdrawn charges. The Attorney General has publicly supported the decision reached by the trial prosecutor. Senior members of the Attorney General's ministry may have been consulted in advance of Jaffer's guilty plea to the careless driving charge.
5) Is this kind of plea bargaining routine?
Plea bargaining is a regular feature of the criminal justice system and the practice has been approved by the Supreme Court of Canada. There are rare drinking and driving cases where the Crown determines that a plea to a charge of careless driving is acceptable. For example, the readings may be close to the legal limit of the blood-alcohol level. If the Crown determined, as in this case, that there was no reasonable prospect of obtaining a conviction, the Crown was obligated to withdraw the charges.
5) Why doesn't Jaffer's lawyer, Howard Rubel, provide a public account of the reasons the deal was negotiated?
Howard Rubel achieved an exceptional result for his client. His comments after the matter concluded were properly measured and brief. He was bound by an agreement with the Crown to maintain confidentiality of any negotiations he previously conducted with the Crown.
6) The controversy isn't helping Rubel's client. Isn't there anything that Jaffer or his lawyer can do to address the public concern of preferential treatment?
Rahim Jaffer would be prudent to say nothing further beyond the apology he delivered outside court. It is my view, however, that Howard Rubel should seek permission from the Crown to be relieved of his confidentiality agreement. This should be accomplished as soon as possible. Rubel could then prepare a public statement setting out concisely the legal justification for the withdrawal of the criminal charges.
7) Was the Crown at fault for not providing a full explanation in court for the plea bargain?
It is easy to blame the Crown in hindsight. However, this was not a typical case and the resulting misgivings with the deal could have been gauged in advance. The public reaction is unfortunate because the apparent secrecy has raised questions about the integrity of the administration of justice that are entirely unwarranted. The integrity of the Crown who acted in this case is unassailable.
There was no political interference and indeed if there was no reasonable prospect for conviction, the Crown should be applauded for reaching a bold decision to withdraw the criminal charges. The cryptic explanation for the withdrawal in court predictably heightened public suspicion about a two-tiered system of justice. The Attorney General must take active steps to alleviate such alarming concerns.
E-mail: skurka@crimlaw.org
