Victim Participation in the Plea Negotiation Process in canada

INTRODUCTION

In recent years, a considerable degree of attention has been paid to the need to enhance the nature and scope of victims' involvement in the Canadian criminal justice process (Roach, 1999; Young, 2001). Insofar as victims' participation in the criminal trial process is concerned, most of this attention has been focused on the issues surrounding the introduction of victim impact statements at the sentencing stage. Most dramatically, the Criminal Code was amended in 1999 so as to permit victims to present impact statements orally and in open court: similar provisions exist in relation to parole hearings, under the Corrections and Conditional Release Act (S.C. 1992, c. 20). The growing use of victim impact statements has substantially raised the profile of victims in the judicial process and there has been considerable debate about the influence of these statements in terms of sentencing outcome (Schmalleger, MacAlister, McKenna & Winterdyk, 2000, p. 388).

However, there are compelling reasons to investigate whether victims should be accorded a more formal role at an earlier stage in the criminal justice process. In particular, it is necessary to consider whether there is a sound, prima facie case for according victims a meaningful role in the process of plea negotiation. This issue assumes a considerable degree of importance in light of the fact that, in countries such as Canada, United States and Australia, it appears that about 90% of the casesare resolved through guilty pleas, that are frequently the direct outcome of successful plea negotiations between prosecuting and defence counsel (Canadian Sentencing Commission, 1987, p. 406; Dick 1997, p. 1035; Colquitt, 2001, p. 700; Klein, 1997, p. 19; Rules of Criminal Procedure, 2000, p. 385, and Seifman & Freidberg, 2001, p. 64). Significantly, the duty of defence counsel in these negotiations is directed solely towards benefiting his or her client and, as Chartrand (1995) has pointed out, this duty is essentially that of obtaining if that client wishes to plead guilty. Similarly, while Crown counsel is supposed to function as a "minister of justice" (Mitchell, 2001), he or she is not considered to be acting on behalf of the victim, but rather on behalf of the state.

The impact and ramifications of plea negotiations within the criminal justice process are undoubtedly far–reaching. Indeed, since the contents of a plea bargain may well determine the nature of the specific charges that are laid against an accused person, it inexorably follows that the act of fashioning a "plea bargain" enables the parties to exert a significant degree of influence on the type – and quantum – of any sentence that is ultimately meted out by the trial court. [1] Similarly, the provisions of a plea bargain may frequently dictate the specific type of trial proceeding that will be taken against the accused (for example, summary–conviction, as opposed to indictable, procedures) and, by virtue of this selection, the parties are consequently able to determine the nature and range of sentencing options that will be available to the trial judge.[2] In addition, the outcome of the plea negotiation process may well affect the extent to which Crown and defence counsel "shape the facts," that are ultimately presented to the trial judge at the sentencing stage: this is yet another plea–bargaining strategy that permits the parties to the agreement to exert a significant impact on the ultimate choice of sentence by the trial judge (Cousineau and Verdun–Jones, 1979 and 1982; Griffiths and Verdun–Jones, 1994; Verdun–Jones and Hatch, 1988 and 1987).

Finally, it is clear that the victim of a crime may well be affected – in a most profound and personal manner – by the ability of the prosecuting and defence counsel to take advantage of a plea bargaining process that effectively empowers them to determine the nature of the specific charge(s), that will ultimately be laid against the accused. For example, it may be a matter of extraordinary significance to the victim of a crime of sexual aggression whether the charge laid accurately reflects "what really happened" rather than a "watered–down" version of events that denies the reality of the victim's experiences.

It is clear, therefore, that the sentencing hearing is not the only stage in the criminal trial process that directly affects the nature – and quantum – of the sentence that is handed down by the trial court: indeed, the plea negotiation process arguably plays a remarkably important part in determining sentence outcome. However, to date victims have only been granted a formal role in the sentencing hearing and relatively little attention has been paid to the question of whether it would be desirable – and sound social policy – to accord them a right of meaningful participation in the plea negotiation process.

In 1987, The Canadian Sentencing Commission made a number of recommendations that addressed the interests of victims in the plea negotiation process. Unfortunately, most of these recommendations have not been formally implemented – even though they may well have paved the way for a noteworthy improvement in the status of victims in the pre–trial stages of the criminal justice process (Brodeur, 1999). However, it would be valuable, for present purposes, to re–visit some of the more important recommendations made by the Commission in relation to plea negotiations – particularly those that touched on victim involvement.

The Commission asserted that victims had the right to be kept fully informed of plea negotiations and that Crown counsel should "represent their views." Similarly, it was recommended that, "where possible, prior to the acceptance of a plea negotiation, Crown counsel (should) be required to receive and consider a statement of the facts of the offence and its impact on the victim." However, perhaps the most significant recommendation of the Commission (1987, p. 428) was to make the plea negotiation process one that is both transparent to the public and subject to judicial scrutiny:

The Commission recommends a mechanism whereby the Crown prosecutor would be required to justify in open court a plea bargain agreement reached by the parties either in private or in chambers, unless, in the public interest, such justification should be done in chambers.

This last recommendation appears to have been based on the model that has been developed in the Federal Courts of the United States of America – namely, Rule 11 of the Federal Rules of Criminal Procedure. This model was brought to the attention of the Commission by Verdun–Jones and Hatch (1988) and clearly constitutes a valuable starting point for developing reform proposals for implementation in a specifically Canadian context. More importantly, this model embraces a mechanism that, if further developed, might provide a basis for the involvement of victims in the plea negotiation process in the most transparent of forums – namely, in open court.

Rule 11 operates within the context of an elaborate system of federal sentencing guidelines – a regulatory structure that is markedly absent within the Canadian context. Nevertheless, the model of judicial regulation of plea bargaining, that underlies the combined regimes imposed by Rule 11 and the federal sentencing guidelines, constitutes a valuable template for potential reform of the criminal court process in Canada. Therefore, the present report comprehensively examines the U.S. experience in relation to judicial regulation of plea bargaining and explores the possible means by which this experience might usefully be harnessed in the development of reform proposals that furnish the victims of crime with a constructive role in the plea negotiation process that occurs within the Canadian criminal courts.

The issue of victim participation in the process of plea bargaining is examined in the light of the evolution of victims' rights movements in a number of jurisdictions around the Globe. More specifically, the focus of the analysis is placed on the emerging trend towards granting the victims of crime certain rights in relation to the prosecution of "their" offenders. This trend has manifested itself both at the international and national levels and has resulted both in the promulgation of international declarations and the enactment of specific legislation within various jurisdictions in the World. Particular attention is then paid to the provisions of federal and provincial/territorial legislation within Canada that deal with the rights of victims in relation to the prosecution of cases within the criminal courts.

In Canada, there are very few rights that have been accorded to victims in relation to the plea bargaining process. This situation stems from the fact that, although it is widely recognized that plea negotiations constitute an integral part of the criminal justice process in Canada, they nevertheless have no formal legal status and are not subject to direct judicial regulation. The present report examines the current judicial response to plea bargaining within Canada and identifies the negative consequences for the victims of crime that flow from the lack of any formal process of regulation of this ubiquitous phenomenon in the criminal justice process.

The report then addresses the question as to whether Rule 11 of the Federal Rules of Criminal Procedure in the United States may serve as the basis for the development of a satisfactory model for the judicial regulation of plea negotiations in Canada. The operation of Rule 11 is scrutinized in the context of the regime of sentencing guidelines that applies to the federal courts in the United States. While Rule 11 certainly establishes a working template for the effective regulation of plea bargaining by the courts, it does not make provision for direct participation in the process by the victims of crime. The report, therefore, examines legislation in the State of Arizona that unequivocally grants the victims of crime the right to make written or oral presentations to the court that is considering whether to accept or reject a proposed plea agreement. It is suggested that a viable model for the participation of victims in the plea negotiation process in Canada may be forged by combining elements of both Federal Rule 11 and the Arizona legislation.

If consideration is to be given to granting Canadian victims of crime a direct role in a formal, plea bargaining hearing before a court, then it is imperative that some serious attention be devoted to the potential impact that such a fundamental change in criminal procedure may have in the future. To this end, the report examines the jurisprudence and empirical research that has emerged in relation to the introduction of the victim impact statement at the sentencing stage of a criminal trial. By evaluating the impact of victim impact statements on the nature and quantum of sentence and on the levels of victim satisfaction with the court process, the present report attempts to project the potential consequences of granting Canadian victims of crime the right to participate meaningfully in a formal, judicial hearing that is designed to regulate the practice of plea bargaining.

The report concludes with an examination of four, alternative models of victim involvement in the plea negotiation process and recommends the adoption of a model that permits victims to participate directly in a formal, plea negotiation hearing before a judge – but without granting them a right of veto.


  • [1] Conviction of the accused upon more serious charges will usually lead to a more severe sentence and vice versa. Manson provides an example of a situation in which the exercise of prosecutorial discretion may effectively permit the accused to by pass a mandatory sentence – namely, the decision to not charge the accused with murder, where the homicide was carried out for "compassionate reasons" (Manson (2001: 66–67).
  • [2] The sentencing options are considerably more restricted, if summary–conviction procedures are employed.
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