Victim Participation in the Plea Negotiation Process in canada

3. Plea Bargaining in Canada (cont'd)

3.3 The Lack of a Formal Process for Plea Bargaining in Canada

Undoubtedly, the members of the Canadian judiciary have now accepted the fact that plea bargaining plays a significant role in the efficient administration of justice and have sustained it by embracing sentencing policies that indirectly give effect to the agreements fashioned by Crown and defence counsel. However, in spite of the recommendations of the Canadian Sentencing Commission (1987) and the Law Reform Commission of Canada (1989), there is still no formal process by means of which Canadian courts are required to scrutinize the contents of a plea bargain and to ensure that there is adequate protection for the rights and interests of all of the affected parties – the Crown, the accused, the victim(s) and members of society in general (Verdun–Jones and Hatch, 1988). [15] The Criminal Code (section 625.1) makes provision for the holding of formal, pre–trial hearings before a judge in order "to consider the matters that, to promote a fair and expeditious hearing, would be better decided before the start of the proceedings, and other similar matters, and to make arrangements for decisions on those matters." [16] However, the Criminal Code does not require that the existence of a plea bargain be made known to the court in the course of such a pre–trial hearing: nor does the Code impose a duty on trial judges to investigate the circumstances underlying a plea bargain, if it comes to their attention that one has, in fact, been reached between Crown and defence counsel. [17]

From the point of view of the accused, the lack of a formal procedure requiring the disclosure of a plea bargain by counsel means that there is currently no independent review of whether they have entered into such an agreement voluntarily and with full knowledge of the potential ramifications (although this particular situation would undoubtedly be remedied if Bill C–15 A, which is currently before Parliament, is ultimately enacted and proclaimed). [18] Furthermore, there is always the possibility that a failure by counsel to inform the trial judge that a plea agreement has been reached will lead to a situation in which the accused duly fulfills his or her part of the bargain but does not ultimately receive a sentence that adequately reflects the expectations that have been fostered by the Crown in order to extract a plea of guilty (Verdun–Jones & Cousineau, 1979, p. 245). This unfortunate situation was clearly present in R. v. Neale (2000). In this case, the defendant had agreed to plea guilty to a charge of robbery in exchange for the Crown's undertaking to make a submission in support of a five–year sentence, less the time already spent in custody. Unfortunately, counsel neglected to inform the trial judge that this plea bargain had been reached. Subsequently, the trial judge sentenced the defendant to seven years in prison. Upon the accused's appeal against sentence, Justice Lambert noted (para. 12) the serious consequences that ensued as a consequence of this failure of communication:

If counsel for the Crown or counsel for the defence had told the sentencing judge at the appropriate time that an agreement had been made whereby the accused would plead guilty and, in exchange, the Crown would make a submission that a five year sentence, less remand time, would be appropriate, then under the authorities, the sentencing judge would have been required to give very serious concern and consideration to that submission. I do not doubt that she would have done so. That would be particularly so where a joint submission was made by counsel for the Crown and counsel for the defence.

Even though the accused did not receive the sentence recommended by the Crown (and even though the trial judge was never informed that a plea bargain had been struck) the Court of Appeal nevertheless dismissed the appeal against sentence. As Justice Lambert noted (para. 14),

In my opinion, no injustice is being done to the appellant in this particular case through the processes before the sentencing judge. The sentence is a fit one with the appropriate range and the circumstances of the sentencing were not such as to create any injustice….

While there is a real doubt as to whether or not the accused would perceive this sentencing outcome to be just, it is certainly beyond doubt that such a situation would never have arisen, if there had been a formal procedure that required the Crown and defence counsel to disclose the existence of any plea agreement and to seek the trial judge's approval of its terms.

While the absence of a mandatory process for the judicial review of plea bargains raises profound questions concerning the protection of the rights of the accused, it is also important to recognize that there is equally no provision in Canadian criminal procedure for the trial judge to take into account the legitimate interests of the victim in the outcome of a case that is ultimately resolved through a plea bargain. While victims now have the right to submit victim impact statements at the sentencing stage, the outcome of a particular case may already have been determined by a plea bargain that has been made well before the victims have their day in court: for example, the choice of the charge(s) laid against the accused following a plea bargain, is a decision that undoubtedly dictates the nature and range of the sentence that may be imposed by the trial court and also constitutes an official statement to the community of "what happened" to the victim of the crime. Once the charge has been laid against the accused, a victim's ability to offer a meaningful contribution to the decision–making process of the criminal court system has been significantly reduced.

At present, the only Canadian jurisdictions that have enacted legislation concerning the role of victims in the plea bargaining process are Manitoba and Ontario. However, the Ontario legislation merely requires that victims "should have access to information" about "any pretrial arrangements that relate to a plea that may be entered by the accused at trial" (Victims' Bill of Rights, 1995, c. 6., s. 2(x)). It is significant that the Martin Task Force Report, that was published two years before the enactment of the Ontario Victims' Bill of Rights, had recognized that victims should be consulted about plea bargains "where appropriate and feasible". However, as Roach (1999, p. 99) points out, the recommendations of the Martin Task Force were not designed to enhance the level of direct victim participation in the criminal justice process in Ontario and it was made clear that victims should not be given the right to veto an agreement of which they disapproved. According to Roach (1999, p. 99), it was assumed that the exercise of power within the arena of plea bargaining in Ontario was to remain squarely in the hands of the criminal justice professionals and the primary goal of the Task Force in recommending more widespread acceptance of plea bargaining was not that of victim empowerment but rather that of enhancing the efficiency of a court system that would collapse if most defendants decided to exercise their right to a full trial.

In sharp contrast, the Manitoba Victims' Bill of Rights (2000) grants victims a definite right to be consulted about various aspects of the prosecution of "their" defendants. It remains to be seen whether other Canadian provinces and territories will follow Manitoba's lead in this respect. Undoubtedly, the Manitoba legislation elevates the role of the victim in plea negotiations to a level that is entirely novel within the Canadian context.