Plea bargaining

Role of the Judiciary in Resolution Discussions

Most resolution discussions occur solely between the prosecutor and defence counsel. The judge does not generally take part in this process. Resolution discussions are often most effective when they can be conducted informally, in private and at the convenience of the lawyers involved[55]. It is important to ensure that the courtroom proceedings that follow serve to verify the propriety of the discussions, and to enhance the public's understanding of both the nature and limits of the latter. Counsel are required to advise the court that a resolution agreement has been made, and the circumstances that led to it must almost always be fully disclosed in open court[56]. Except in rare and compelling situations[57], it is not acceptable for the lawyers to discuss a resolution agreement privately with the trial judge in advance of the hearing to determine the court's reaction to it[58]. This restriction, however, does not prevent lawyers from participating in a judicially supervised resolution discussion conducted pursuant to legislation. Such a system of judicially supervised discussions does exist : it is known as the pre-trial conference. A pre-trial conference is defined as an informal meeting conducted in a judge's office at which a full and free discussion of the issues raised may occur without prejudice to the rights of the parties in any proceedings thereafter taking place[59]. The Criminal Code of Canada provides that a pre-trial conference between a prosecutor and the accused or defence counsel that is presided over by a judge may take place in order to consider any matters that would promote a fair and expeditious hearing[60]. A pre-trial conference may be initiated on application by the prosecutor, the accused or the court. In the case of jury trials, these pre-trial conferences are mandatory[61].

The role of the judge during a pre-trial conference is to remain fair and impartial. It is inappropriate for the judge to become involved in plea bargaining, in the sense of bartering to determine the ultimate sentence, or in pressuring any counsel to change his position[62]. The inherent dangers of this practice have been acknowledged :

[T]he appearance of justice is part of the substance of justice and it will not do if a prisoner or the general public derive the impression that it is possible, either openly in a pre-trial review (...) or by private discussion between counsel and judge, to achieve a bargain with the Court.[63]

The presiding judge may, however, assist in resolving the issue of sentence by expressing an opinion as to whether a proposed sentence is too high, too low or within an appropriate range. As a neutral guide, the judge may also be of great assistance in helping the parties identify their differences, and, where appropriate, reconcile them. For example, a judge may draw out salient points, ensure that they are fully explored, direct the discussion to important issues, and keep matters on the topic[64]. It should be noted that the pre-trial conference judge will not preside over subsequent substantive courtroom proceedings related to the matter without the consent of both parties. The purpose of this principle is to ensure that the resolution discussions that take place at the pre-trial conference are wide-ranging, informal and without prejudice to the parties, and to preserve judicial impartiality in the courtroom[65].

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