Plea bargaining

The Principles Guiding Resolution Discussions

Resolution discussions can nonetheless be advantageous to all the parties involved in a criminal case — including the prosecution, the defence, the accused, the police and the victim — and to the administration of justice generally.

The propriety in principle of such discussions flows from the very nature of the criminal justice system in Canada. The adversarial system accords to the parties of a criminal prosecution wide discretion in determining the manner and form of proceedings, and it expects this discretion to be exercised with a high standard of integrity and responsibility. In such a system, there is a corresponding expectation on lawyers to resolve issues before trial by mutual agreement. Adversarial proceedings must be flexible in order to function.

But practical considerations also make plea bargaining a necessity. The total cost of crime in Canada is estimated to be close to 59 billion dollars per year[26]. The costs of crime include the expenditures required for protection[27], those incurred by victims[28] and those associated with the functioning of the justice system. Justice system costs alone amount to 20% of the total, or close to 12 billion dollars[29]. These costs include expenditures on police, prosecution, legal aid, courts and prisons. Measures such as resolution discussions can help reduce expenditures. Resolving a criminal case either through a plea of guilty or by reducing the length of a trial alleviates the workload of prosecutors, reduces the need for judicial resources and courtroom facilities and decreases all the other expenses necessitated by a trial.

The reality is that the vast majority of criminal convictions are secured through pleas of guilty. In 1998, a study conducted within the province of Ontario concluded that 91.3% of all criminal cases were resolved without the necessity of a trial[30]. Without the practice of resolution discussions, the administration of justice could not operate efficiently and would in fact grind to a halt[31]. This does not mean however that the public interest in the proper administration of justice should be sacrificed in the interest of expediency[32].

Prosecutors are vested with a great deal of responsibility in the criminal justice system[33], for they represent the public interest in the broad sense of the term and must see that justice is properly done[34]. They have a professional obligation to conduct resolution discussions, and they must execute this duty based on the principles of fairness, openness, accuracy, non-discrimination and the public interest in the effective and consistent enforcement of criminal law[35]. Due to the benefits that flow to the administration of justice from early guilty pleas, prosecutors are obliged to initiate, as well as respond to, plea discussions, and they should make the best offer to the accused as soon as practicable[36]. In cases that proceed to trial, it is also incumbent on prosecutors to attempt to narrow the issues to be litigated as much as possible[37]. Prosecutorial offices often operate with limited resources and have to deal with a heavy workload. In such a context, resolution discussions can provide greater flexibility in the disposition of cases[38].

Every accused person in Canada has extensive constitutional rights under the Charter of Rights and Freedoms. These rights include the right to be presumed innocent and to have a fair and public trial. Other protections afforded govern the investigative stages of the criminal process. One pivotal right that greatly affects resolution discussions is that of full disclosure. It is a duty[39] of the prosecutor to disclose to the accused, or counsel for the accused, the evidence on which the prosecutor intends to rely at trial, as well as any relevant and non-privileged information that may assist the accused, whether intended to be adduced or not[40]. The purpose of disclosure is twofold : to ensure that the accused knows the case to be met and is able to make full answer and defence ; and to encourage the resolution of facts that are contentious, including, when appropriate, the entering of guilty pleas at an early stage in the proceedings[41]. Once an accused is fully informed of the criminal case against him, he may decide to plead guilty. However, the accused must be willing to acknowledge his guilt unequivocally[42]. Finally, the plea of guilty, to be lawful, must always be a free and voluntary act by the accused himself, untainted by any threats or promises to induce the accused to admit he committed the offence when he does not wish or intend to do so[43]. It is also essential that the accused be prepared to admit the necessary factual and mental elements of the offence charged at the time that a plea of guilty is entered[44]. A trial judge is not legally bound to conduct in all cases an inquiry into the validity of a guilty plea after it has been entered. It is within the trial judge's discretion to hear evidence for the purpose of satisfying himself that the charges are well founded or in order to have a factual background prior to imposing sentence. Should the evidence indicate that the accused never intended to admit a fact that is an essential component of the offence, or show that he may have misapprehended the effect of the guilty plea or never intended to plead guilty at all, the judge has the power to direct that a plea of not guilty be entered or permit the accused to withdraw his original plea and enter a new one[45].

There are a number of benefits that an accused may reap upon deciding to admit criminal liability through an early guilty plea. In exchange for pleading guilty and avoiding a lengthy trial, an accused may receive sentence concessions by the prosecutor or the reduction, withdrawal or staying of some charges. Moreover, Canadian courts have recognised that a guilty plea generally indicates genuine remorse on the part of the offender, and that it should be considered as a mitigating factor by the court during the sentencing hearing[46]. A guilty plea may also provide an element of certainty which is often absent at trial. In a properly conducted resolution discussion, the prosecutor, the defence counsel and the accused will know the agreement reached and the position of all parties regarding the potential disposition of the criminal charges. It is important to remember, however, that the sentence that will be ultimately imposed is entirely within the discretion of the judge assigned to hear the guilty plea. A joint submission or recommendation by the prosecutor and defence counsel regarding the disposition in a criminal case is not binding on the judge[47]. However, judges are legally obligated not to reject a joint submission unless it is contrary to the public interest and the sentence recommended would bring the administration of justice into disrepute[48]. This high threshold is intended to foster confidence in an accused, who has given up his right to a trial, that the joint submission obtained in return for a plea of guilty will be respected by the sentencing judge[49].

In circumstances where a sentencing judge finds that a joint submission would result in an unlawful sentence, the accused will not be allowed to withdraw his guilty plea. To permit a plea withdrawal at this stage would result in judge-shopping in the most reprehensible way[50]. The Court of Appeal of Ontario has stated in this regard that :

The power of the trial judge to impose sentence cannot be limited to a joint submission, and the joint submission cannot be the basis upon which to seek to escape the sentencing judge when it appears that he chooses to reject the joint submission. (...) [A]n accused who could thus withdraw his plea could simply keep doing so until he found a trial judge who would accept a joint submission (...). To permit an accused to withdraw his plea when the sentence does not suit him puts the court in the unseemly position of bargaining with the accused.[51]

This places a heavy onus on the prosecutor and defence counsel to conduct resolution discussions competently and ethically in order to ensure that the accused, who relies on their legal expertise, is not misled regarding what the sentencing judge might do. Among other things, the prosecution and the defence must therefore know the principles of sentencing and the ranges of sentence established by the courts of appeal[52].

Witnesses and victims may also benefit from resolution discussions. It can be traumatising for witnesses who have been victimised in extremely brutal crimes, such as sexual assault or domestic violence, to be required to testify in a public court. Resolution discussions aimed at exploring the possibility of dispensing with the need for their testimony can be advantageous. In this regard, victims can be relieved from the burden of becoming witnesses in a criminal trial[53]. Discussions aimed at resolving substantive trial issues may also lead to the accommodation of the personal schedules of witnesses, and therefore minimise the inconveniences of testifying at trial. The responsiveness to the personal needs of victims, witnesses and accused persons that these types of discussions may allow can help to maintain a high level of confidence in the administration of justice among those directly affected by its processes[54].

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