Plea bargaining

Terminology

The practice of what has come to be known as "plea bargaining" has been the subject of considerable debate over the last few decades. In Canada, the discussion has centered on the exact nature of the practice and on the term by which it should be known[1]. In 1975, the Law Reform Commission of Canada defined "plea bargaining" as "any agreement by the accused to plead guilty in return for the promise of some benefit"[2]. But over the years, considerable objections grew against designating the practice in any way that implied that justice could be purchased at the bargaining table. Consequently, there was a movement away from the use of the term "plea bargaining" and toward more neutral expressions such as "plea discussions", "resolution discussions", "plea negotiations" and "plea agreements". The use of such expressions marked an evolution in the practice itself, since they implicitly acknowledged it to be much more wide-ranging than simple bargaining and to involve the consideration of issues beyond merely that of an accused pleading guilty in exchange for a reduced penalty. For the purposes of this paper, we will mainly use the expression "resolution discussions" because its very vagueness reflects in our view the diversity of the practices it covers. It is, however, generally interchangeable with any of the other terms just mentioned.

Resolution discussions embrace several practices, including charge discussions, procedural discussions, sentence discussions, agreements as to the facts of the offence and the narrowing of issues in order to expedite the trial. Although they may sometimes involve a judge, these private discussions occur primarily between the prosecutor and the accused and his lawyer.

Charge discussions may include the following :

  • the reduction of a charge to a lesser or included offence[3]
  • the withdrawal or stay of other charges
  • an agreement by the prosecutor not to proceed on a charge
  • an agreement to stay or withdraw charges against third parties
  • an agreement to reduce multiple charges to one all-inclusive charge[4]
  • the agreement to stay certain counts and proceed on others, and to rely on the material facts that supported the stayed counts as aggravating factors for sentencing purposes[5]

Procedural discussions may include the following :

  • an agreement by the prosecutor to proceed by summary conviction instead of by indictment[6]
  • an agreement to dispose of the case at a specified future date if, on the record and in open court, the accused is prepared to waive the right to a trial within a reasonable time[7]
  • an agreement to transfer charges to or from a particular province or territory, or to or from a particular jurisdiction in a province or territory[8]

Sentence discussions may include the following :

  • a recommendation by a prosecutor for a certain range of sentence or for a specific sentence
  • a joint recommendation by a prosecutor and defence counsel for a range of sentence or for a specific sentence
  • an agreement by a prosecutor not to oppose a sentence recommendation by defence counsel
  • an agreement by a prosecutor not to seek additional optional sanctions, such as prohibition and forfeiture orders
  • an agreement by a prosecutor not to seek more severe punishment
  • an agreement by a prosecutor not to oppose the imposition of an intermittent[9] sentence rather than a continuous sentence
  • the type of conditions to be imposed on a conditional sentence[10]

When an accused decides to plead guilty, the prosecutor should advise the sentencing court of the facts that could have been proven if the matter had gone to trial. For the court to accept a plea of guilty, the facts alleged by the prosecutor must be accepted by the accused as being substantially accurate, and they must be sufficient in law to constitute an offence. Discussions regarding the facts may include the use of an agreed statement of facts and an agreement by the prosecutor not to include embarrassing facts that are of little or no significance to the charge.

Discussions may also take place in criminal cases that actually proceed to trial in order to narrow the issues that will be litigated[11]. In Canada, the evidentiary burden rests entirely on the prosecutor to prove a criminal charge beyond a reasonable doubt. There is no obligation on the accused to demonstrate his innocence. As a result, criminal trials can be long and heavy. Resolution discussions may, therefore, include concessions by the defence of certain legal issues in order to reduce the onus on the prosecutor. These may include the defence's concession of non-contentious issues such as the jurisdiction of the court, the identity of the perpetrator of the crime or the voluntary character of a statement made by the accused to the authorities[12]. In limited cases, the defence may be legally required to prove an assertion, such as in an application to exclude evidence[13]. In these cases, the prosecutor may also make concessions that are legally sound in order to reduce the burden on the accused during a trial. Finally, discussions may involve identifying witnesses whose evidence may not be necessary, so that they are not needlessly requested to appear.

All this to say that the concept of resolution discussions is a rather loose one. A definition that seems to capture the scope of the notion is that proposed by the Director of Public Prosecutions of the province of Saskatchewan :

A proceeding whereby competent and informed counsel openly discuss the evidence in a criminal prosecution with a view to achieving a disposition which will result in the reasonable advancement of the administration of justice.[14]

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