Plea bargaining

Honouring Resolution Agreements

The prosecutor holds a very special place in the administration of justice in Canada. Prosecutors are not considered simply as advocates but also as officers of justice. The role of prosecutor excludes any notion of winning or losing. The prosecution function is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings[66].

Prosecutors are vested with very substantial discretionary powers, and they must exercise their discretion fairly, impartially, in good faith and according to the highest ethical standards[67]. This requirement is especially relevant where decisions are made outside the public forum, such as during resolution discussions, as these decisions may have a far greater practical effect on the administration of justice than the public conduct of counsel in court. There is a general obligation on prosecutors to honour resolution agreements. These agreements are analogous to undertakings and must be strictly and scrupulously carried out[68]. In addition to being ethically imperative, the honouring of resolution agreements is a practical necessity. These agreements dispose of the majority of the contentious issues that arise during criminal prosecutions. Accordingly, if they are not binding and therefore cannot be relied upon, then the corresponding benefits that resolution discussions can produce are rendered unattainable[69].

It is extremely rare for a prosecutor to attempt to repudiate a resolution agreement. Moreover, the court will not allow a prosecutor on appeal to repudiate the position taken at trial[70] except for the gravest possible reasons, such as the sentence imposed was illegal, the prosecutor at trial was misled or it can be shown that the public interest in the orderly administration of justice is outweighed by the gravity of the crime and the gross insufficiency of the sentence[71]. The seriousness of the obligation to keep an agreement may be illustrated through an examination of prosecution of one of the most dangerous criminals in Canada and his accomplice wife.

Between May 1987 and December 1992, Paul Bernardo, a diagnosed psychopathic sexual sadist, murdered three women and sexually assaulted at least eighteen[72]. During that period, the authorities did not have any admissible evidence identifying Bernardo as the perpetrator of these crimes. On 1 February 1993, the first clue was discovered. The Centre of Forensic Sciences advised the police that there was a match between Bernardo's DNA and some of the rapes[73]. However, this was not enough to connect Bernardo to the three murders. There was only one way : through his wife Karla Homolka. Homolka was both a victim of her husband's abuse and an accomplice to his crimes. On 11 February 1993, Homolka retained a lawyer who negotiated with the prosecutor on her behalf[74]. She had invaluable information that would assist the police in apprehending Bernardo, but she wanted a deal. The prosecutor and police faced a serious dilemma. They had a strong case against Homolka but nothing to convict Bernardo. The authorities were faced with the unpleasant fact that if Bernardo was to be prosecuted for the murders, it was essential that they have Homolka's evidence and cooperation. On 14 May 1993, the prosecutor entered into an agreement with Homolka after months of discussions with her lawyer[75]. In exchange for her cooperation and testimony against Bernardo, she would plead guilty to two counts of manslaughter and receive a sentence of 12 years imprisonment[76]. Homolka was sentenced on 6 July 1993[77]. Over one year later, the community at large was shocked by the discovery of critical new evidence. On 22 September 1994, videotapes made by Bernardo were discovered by the police[78]. These videotapes captured the vicious sexual assaults that were perpetrated by both Bernardo and Homolka against a number of victims, including the deceased young women[79]. Consequently, Homolka's deal with the prosecutor came under heavy public scrutiny as she no longer could be portrayed as the abused wife who was manipulated by a sadistic killer : rather, she was now seen as a willing participant to the crimes. Had the authorities been in possession of the tapes on 14 May 1993, the prosecutor would never have entered into the resolution agreement with Homolka[80]. On 1 September 1995, Bernardo was convicted of two counts of first-degree murder and sentenced to life imprisonment without eligibility for parole for 25 years[81]. He was also found to be a dangerous offender and sentenced to be detained in a penitentiary for an indefinite period of time[82].

Due to a profound and widely felt sense of public outrage at the fact that Homolka was only sentenced to 12 years for her part in the commission of horrific offences, the Attorney General of Ontario established an inquiry[83]. The inquiry examined the propriety of the decisions made by the prosecutors respecting Homolka. The 14 May 1993 resolution agreement and the prosecutor's decision not to charge Homolka with murder after the discovery of the crucial videotapes were reviewed. The result of the inquiry was that the conduct of counsel on both sides was professional and responsible, and that the process surrounding the resolution agreement was unassailable :

It is my firm conclusion that, distasteful as it always is to negotiate with an accomplice, the Crown had no alternative but to do so in this case. The Crown has a positive obligation to prosecute murderers. It is (...) often the "lesser of two evils" to deal with an accomplice rather than to be left in a situation where a violent and dangerous offender cannot be prosecuted.[84]

The inquiry also concluded that the appropriate criminal sanction for Homolka's involvement was in the range of ten to fifteen years imprisonment[85]. Therefore, the sentence of 12 years was held to be adequate.

In respect of the prosecutor's decision not to charge Homolka with murder after the videotapes were discovered, the inquiry held that it was not feasible for the prosecutor to charge Homolka[86]. Such action would have violated the terms of the resolution agreement[87] and is barred by the Criminal Code of Canada[88]. Homolka had not committed a fraud upon the Crown or the Court that sentenced her[89]. From the very beginning, she had advised the authorities that the videotapes existed but that she did not know where Bernardo had hidden them. Homolka made full, complete and truthful disclosure of all of the criminal activity in which she participated or of which she had knowledge[90]. She had lived up to her end of the resolution agreement[91]. Finally, the inquiry found that this was not one of those very rare cases where the prosecutor would be entitled to repudiate the resolution agreement. It stated that to set aside such arrangements so long after the fact was more likely to bring the administration of justice into disrepute than uphold it[92]. This notorious and unusual case illustrates the tremendous obligation on the prosecutor to honour resolution agreements.