Victim Participation in the Plea Negotiation Process in canada

3. Plea Bargaining in Canada

3.1 Introduction

For many years, plea bargaining has been one of the most controversial – and, perhaps, least understood – practices in the Canadian criminal justice system (Griffiths & Verdun–Jones, 1994, p. 317). For criminal justice researchers, plea bargaining is a compendious term that describes a broad range of behaviours that may occur among actors in the criminal court system (Verdun–Jones & Hatch, 1988, p. 1). The police, the Crown, and defence counsel may engage in conduct that ranges from simple discussions – through negotiations – to concrete agreements, that are perceived to be binding on the parties. It would be trite to point out that discussions and negotiations may not ultimately lead to any form of agreement between the parties; nevertheless, these activities have generally been considered by researchers to constitute components of the practice of plea bargaining (Griffiths & Verdun–Jones, 1994, p. 318). For the purpose of this report, however, a considerably more circumscribed definition of plea bargaining will be employed. This definition is predicated on the assumption that an unequivocal agreement has been reached between Crown and defence counsel concerning the steps that will be taken by the Crown and the accused in subsequent court proceedings. In this respect, the most serviceable definition has been furnished by the Law Reform Commission of Canada (1989, p. 3–1), which stated that a "plea agreement" constitutes "an agreement by the accused to plead guilty in return for the prosecutor's agreeing to take or refrain from taking a particular course of action" (see also Cohen & Doob, 1990, p. 85). Broadly speaking, the promises that may be made by Crown counsel fall into three, overlapping categories: (1) promises relating to the nature of the charges to be laid (charge bargaining); (2) promises relating to the ultimate sentence that may be meted out by the court (sentence bargaining); and (3) promises relating to the facts that the Crown may bring to the attention of the trial judge (fact bargaining).

These three categories of plea bargaining encompass a variety of promises that may be offered by the Crown. For example, Verdun–Jones and Hatch (1987, pp. 74–75) set out the following list of possible undertakings, which is by no means definitive:

  1. Charge Bargaining
    1. Reduction of the charge to a lesser included offence;
    2. Withdrawal or stay of other charges or the promise not to proceed with other possible charges; or
    3. Promise not to charge friends or family of the defendant; or
    4. Promise to withdraw a charge in return for the defendant's undertaking to enter into a peace bond. [10]
  2. Sentence Bargaining
    1. Promise to proceed summarily rather than by way of indictment;
    2. Promise to make a specific sentence recommendation;
    3. Promise not to oppose defence counsel's sentence recommendation;
    4. Promise to submit a joint sentencing submission;
    5. Promise not to appeal against sentence imposed at trial;
    6. Promise not to apply for a more severe penalty (for example, by not giving notice to seek a higher range of sentence based on the accused's previous conviction – s. 727 of the Criminal Code);
    7. Promise not to apply to the trial court for a finding that the accused is a dangerous offender (s. 753 of the Criminal Code) or a long–term offender (s. 753.1 of the Criminal Code);
    8. Promise to make a representation as to the place of imprisonment, type of treatment, etc.; or
    9. Promise to arrange the sentence hearing before a particular judge.
  3. Fact bargaining
    1. promise not to "volunteer" information detrimental to the accused during the sentencing hearing;
    2. promise not to mention a circumstance of the offence that may be interpreted by the judge as an aggravating factor (see, for example, the aggravating factors listed in s. 718.2(a) of the Criminal Code). [11]