Victim Participation in the Plea Negotiation Process in canada

2. Victims' Rights and the Prosecution of Criminal Cases

2.1 International Context

2.1.1 United Nations Declaration

The recognition of the need to provide the victims of crime with opportunities to play a more active role in the criminal justice process constitutes part of a significant international trend. For example, on November 29th, 1985, the General Assembly of the United Nations adopted the Declaration of Basic Principles of Justice for Victims of Crime (United Nations, 1985). Subsequently, the United Nations Commission on Crime Prevention and Criminal Justice developed a handbook to assist states in their implementation of the Declaration (United Nations, 1998). Particular attention is paid to the rights of victims in the prosecution phase of the criminal justice process. Indeed, among the specific roles and responsibilities assigned to prosecutors, the Handbook (United Nations, 1998, chap. 3.2.2) highlights the duty to provide specific forms of information to victims, including

  • providing notification of the status of the case at key stages in the criminal justice system,
  • coordinating, where applicable in the jurisdiction, the inclusion of victim impact information (i.e. written statements, allocution, audio, or video statements) into court proceedings (including plea bargains, pre–sentence reports, and sentencing) with probation authorities and the judiciary.

In recognition of the United Nations' Declaration of Basic Principles of Justice for Victims of Crime, Federal and Provincial Ministers Responsible for Criminal Justice agreed that the following principles should guide Canadian society in promoting access to justice, fair treatment and provision of assistance for victims of crime (Department of Justice Canada, 1999):

Canadian Statement of Basic Principles of Justice for Victims Of Crime
  1. Victims should be treated with courtesy, compassion and with respect for their dignity and privacy and should suffer the minimum of necessary inconvenience from their involvement with the criminal justice system.
  2. Victims should receive, through formal and informal procedures, prompt and fair redress for the harm which they have suffered.
  3. Information regarding remedies and the mechanisms to obtain them should be made available to victims.
  4. Information should be made available to victims about their participation in criminal proceedings and the scheduling, progress and ultimate disposition of the proceedings.
  5. Where appropriate, the view and concerns of victims should be ascertained and assistance provided throughout the criminal process.
  6. Where the personal interests of the victim are affected, the views or concerns of the victim should be brought to the attention of the court, where appropriate and consistent with criminal law and procedure.
  7. Measures should be taken when necessary to ensure the safety of victims and their families and to protect them from intimidation and retaliation.
  8. Enhanced training should be made available to sensitize criminal justice personnel to the needs and concerns of victims and guidelines developed, where appropriate, for this purpose.
  9. Victims should be informed of the availability of health and social services and other relevant assistance so that they might continue to receive the necessary medical, psychological and social assistance through existing programs and services.
  10. Victims should report the crime and cooperate with the law enforcement authorities.

2.1.2 European Initiatives

Similarly, in March of 2001, the Council of the European Union issued a Framework Decision, which – inter alia – addressed the right of victims to receive information concerning the prosecution of their cases within the criminal court process (European Union, 2001). Article 4 deals with the right of victims to be supplied with information "of relevance for the protection of their interests" (such as the availability of support services and legal aid) and provides specifically that:

2. Each Member State shall ensure that victims who expressed a wish to this effect are kept informed of:

  1. (a) the outcome of their complaint;
  2. (b) relevant factors enabling them, in the event of prosecution, to know the conduct of the criminal proceedings regarding the person prosecuted for offences concerning them, except in exceptional cases where the proper handling of the case may be adversely affected;
  3. (c )the court's sentence.

Article 10 also encourages each Member State to promote mediation in criminal cases, where such measures are considered appropriate. However, the Framework Decision does not include any rights of active participation in criminal proceedings.

In the United Kingdom, there is a Victims Charter, that sets out the rights of victims to receive information about the prosecution of their cases as well as their rights of access to relevant support services (Home Office, 1997). The Charter was first published in 1990 and was substantially revised in 1996. In a recent review of the Charter (Home Office, 2001, pp. 4–5), the United Kingdom Government indicated that among the guiding principles for a new Charter in the future should be the need "to provide accurate and timely information about significant developments in the case" and the need "for victims to be offered the chance to say how they have been affected by the crime, and for this to be taken into account by those making decisions within the justice system." The review also emphasized that "keeping victims informed of developments in their case is a key priority" and that both the Crown Prosecution Service and National Probation Service have been given the mandate to carry out this task (Home Office, 2001, p. 8; see also Home Office, 2000). In 2001, the Government accorded any victim, who has made a witness statement to the police, the right to submit a written "victim personal statement" that is subsequently made available to the police, the Crown Prosecution Service, the defence and the trial courts (Home Office, No Date).

Similarly, in the Netherlands, formal victim–notification practices have been included as part of the guidelines that police and prosecutors are required to follow (Wemmers, 1999). As is the situation in the United Kingdom, these formal notification practices do not give victims any direct influence over the prosecutors' decision–making process (Wemmers, 1999, p. 176).

2.1.3 Initiatives in the United States

Jurisdictions in the United States have, for the past decade, been in the vanguard of the trend towards ensuring a greater degree of victim involvement in the criminal justice process. These jurisdictions have spotlighted the need to recognize victims' rights in the process of criminal prosecution and, more particularly for the purposes of this report, they have – in one way or another – addressed the question of victim participation in plea negotiations.

All 50 of the various states have enacted victims' rights legislation and 29 of them have actually entrenched these rights within their constitutions. Furthermore, the federal Congress has kept pace with the state legislatures by enacting its own series of victims' rights laws, commencing with the Victim's Rights and Protection Act of 1990 (Kilpatrick, Beatty, & Howley, 1998, p. 1).

One of the central features of this body of victims' rights legislation is the right of victims to be informed of the status and progress of their cases within the criminal court system. In most of the state statutes, there is – at least – a requirement that victims be given relevant information about any plea negotiations that are being conducted with the accused in their cases (Welling, 1987, p. 339). [3] In a considerable number of states, the victim is entitled to more than mere information. Indeed, at least 29 states "require prosecutors to 'consult with' or 'obtain the views of' the victims at the plea agreement stage" (U.S. Department of Justice, 1998, Report no. 4, p. 3). For example, Nebraska, South Carolina, and West Virginia have implemented statutes that require the prosecutor to obtain the views of the victim concerning any proposed plea agreement with the accused (Welling, 1987, p. 341). In a similar vein, the Attorney General Guidelines for Victim and Witness Assistance (U.S. Department of Justice, 2000, p. 33) place federal prosecutors under a duty to make every reasonable effort to consult with the victims of crime and to provide them – at the earliest opportunity – with notice of the terms of a plea bargain. [4]

In some states, victims are not only given the right to be consulted about the terms of a proposed plea agreement but also the right to participate in the plea hearing that is held before the trial judge. For example, Florida, Minnesota and Rhode Island have legislative provisions that grant victims the right to be present at a plea hearing and to express their views to the trial judge – either orally or in writing (Welling, 1987, pp. 342–3).

Perhaps, the strongest legislation, concerning victims' rights in the specific context of plea bargaining, has been enacted by the state of Arizona. Under the provisions of the Arizona Criminal Code (Arizona Revised Statutes, Title 13), the victim has the right to be consulted by the prosecution about the terms of a proposed plea agreement. Section 13–4419 stipulates that:

  1. On request of the victim, the prosecuting attorney shall confer with the victim about the disposition of a criminal offense, including the victim's views about a decision not to proceed with a criminal prosecution, dismissal, plea or sentence negotiations and pretrial diversion programs.
  2. On request of the victim, the prosecuting attorney shall confer with the victim before the commencement of the trial.
  3. The right of the victim to confer with the prosecuting attorney does not include the right to direct the prosecution of the case. (Emphasis added).

Although victims do not have the right of veto, the Arizona Criminal Code grants them the right to be present at any hearing concerning a plea agreement and to fully express their views to the court before the judge makes a decision whether or not to accept it. This right is enshrined in Code section 13–4423 of the Arizona Criminal Code, which reads as follows:

A. On request of the victim, the victim has the right to be present and be heard at any proceeding in which a negotiated plea for the person accused of committing the criminal offense against the victim will be presented to the court.

B.The court shall not accept a plea agreement unless:

  1. The prosecuting attorney advises the court that before requesting the negotiated plea reasonable efforts were made to confer with the victim pursuant to section 13–4419.
  2. Reasonable efforts are made to give the victim notice of the plea proceeding pursuant to section 13–4409 and to inform the victim that the victim has the right to be present and, if present, to be heard.
  3. The prosecuting attorney advises the court that to the best of the prosecutor's knowledge notice requirements of this chapter have been complied with and the prosecutor informs the court of the victim's position, if known, regarding the negotiated plea.

Clearly, the Arizona régime ensures that the victim is no mere passive recipient of information concerning plea negotiations between the prosecutor and the accused. Prosecuting attorneys are required to listen to the views of victims concerning key decisions made in the prosecution of "their" cases and the victims themselves are now entitled to have their voices heard by the courts that make the decision whether or not to accept or reject a plea bargain. The recent case of State v. Espinosa (2001) vividly demonstrates the potential impact that these Criminal Code provisions may have on the plea bargaining process within Arizona. The accused had initially been offered a favourable plea agreement by the prosecutor. However, when it became clear that the victim and her family objected to the proposed disposition of the case, the prosecutor withdrew the plea offer. The accused was then tried by a jury and found guilty of all of the charges that had been filed by the prosecuting attorney. The accused subsequently sought post–conviction relief, claiming that his rights had been violated when the prosecutor had decided to withdraw the offer of a plea agreement solely on the basis of the victim's wishes. The trial court found that the prosecutor's decision had been "based solely on the victim's and her family's objection to a non–trial disposition" and ruled that the plea offer had been withdrawn "for improper reasons". Therefore, the trial court ruled that there had been violations both of Espinosa's "due process rights" and of the "Separation of Powers Clause of the Arizona Constitution." The trial court then ordered the prosecutor to give Espinosa an opportunity to accept the original plea offer.

On appeal by the State, the Arizona Court of Appeals held (para. 15) that the trial court had "abused its discretion in granting post–conviction relief" and set aside the trial court's order that required the prosecutor to give the defendant the opportunity to accept the plea offer. At the appeal, Espinosa had contended that his rights under the Arizona Constitution (Article III) had been infringed – insofar as "the power and authority (to rescind a plea offer) cannot be delegated to the victim." However, the appellate court ruled that the defendant's rights had not been violated since, prior to the trial, he had received ample time to challenge the withdrawal of the offer of the plea agreement and yet had chosen not to raise the issue until after the trial had been completed. The Espinosa case is of considerable significance since it furnishes a vivid illustration of the power of the victim to influence the course of plea bargaining in a state that has enacted strong victims' rights legislation. As it turned out, the Court of Appeals did not need to address the constitutional issues surrounding the legitimacy of providing the victim of crime with the right to object to a proposed plea bargain. However, since the legislation clearly states that the victim has no right of veto over prosecutorial discretion, one might well assume that there is no delegation to the victim of the state's power to rescind a plea agreement.

There has recently been strong pressure within the United States to extend the type of victims' rights enshrined in the Arizona legislation to all jurisdictions and to ensure that these rights are rendered effective. For example, the Office for Victims of Crime (U.S. Department of Justice, 1998, report no. 4, p. 10) recommends that all prosecutors should advocate for the rights of victims to have their views heard by judges on plea bargains. It also recommends that "prosecutors should make every effort, if the victim has provided a current address or telephone number, to consult with the victim on the terms of any negotiated plea." The Office for Victims of Crime (U.S. Department of Justice, 1998, report no. 5, p. 8) has also emphasized the need for the judiciary to become more active in promoting the participation of victims in the plea negotiation process and recommends that "judges should facilitate the input of crime victims into plea agreements and resulting sentences, and they should request that prosecuting attorneys demonstrate that reasonable efforts were made to confer with the victim."

Although the legislative developments in U.S. jurisdictions appear to have substantially enhanced the rights of crime victims to have some meaningful input into the process of plea bargaining, it is important to note that there remain fundamental questions concerning the effectiveness of these rights in some U.S. jurisdictions. The precise contents of the victims' rights statutes vary considerably from state to state. In some jurisdictions, the legislature has not made clear which specific criminal justice officials are responsible for ensuring that victims are given adequate notification of their rights and meaningful information about the progress of "their" cases. Without clear guidance from the legislature, the interpretation – and administration – of these victims' rights provisions has been left entirely to the prosecutors themselves (U.S. Department of Justice, 1998, Report no. 4, p. 7).

For example, one study (Beatty, Howley & Kilpatrick, 1997, p. 3) found that approximately 50% of all victims of violent crime had not been informed of plea bargains, even where they had a legal right to be consulted by the prosecuting attorney. In a similar vein, a report by the Office for Victims of Crime (U.S. Department of Justice, 1998, report no. 5, p. 1) notes that, "while plea agreements offer an efficient means for court systems to manage overwhelming case loads, they are routinely formalized without input from, consultation with, or notification of victims, denying millions their rights to be informed about and have input to the justice process." The report (p. 8) deplores this situation, which apparently exists in many U.S. jurisdictions, and points out that "victim input into the plea process is critical because the rapid growth in caseloads over the past two decades has forced courts to use more efficient means of concluding cases." In spite of this identified need for their participation in plea bargaining, as the report notes (p. 9), "the great irony for victims is that this is an area of the criminal justice process in which victims are given fewest opportunities for participation."

It appears that victims of crime place considerable value on the right to be consulted on the terms of a proposed plea bargain with "their" accused. Indeed, in a study conducted by the National Center for Victims of Crime, 1,300 crime victims were surveyed. More than 80% of the respondents considered "discussion whether the defendant's plea to a lesser charge should be accepted" to be "very important to them" (Kilpatrick, Beatty, & Howley, 1998, p. 4). Nevertheless, only about 50% of victims were actually given any information about plea negotiations (Kilpatrick, Beatty, & Howley, 1998, p. 4). It is significant that victims who were notified of their rights were more satisfied with the justice system than those who were not. Similarly, victims who believed that their input had an impact on the outcome of their cases were more satisfied with the criminal justice system (Kilpatrick, Beatty, & Howley, 1998, pp. 8–9).


  • [3] For example, the California Penal Code (Section 679.02) provides that the victim of a violent crime has the statutory right to be notified by the prosecutor of "a pending pretrial disposition before a change of plea is entered before a judge." The victim of any felony may request to be notified of a pretrial disposition. If it is not possible to notify the victim of a pretrial disposition before the change of plea is entered, then the prosecutor's office or probation department must do so "as soon as possible."
  • [4] Victims have been granted a statutory right to confer with an attorney for the Government: 42 U.S.C. 10606(b)(5).
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