Victim Participation in the Plea Negotiation Process in canada

7. CONCLUSIONS: FOUR MODELS OF VICTIM PARTICIPATION IN PLEA BARGAINING

7.0 Conclusions: Four Models of Victim Participation in Plea Bargaining

In the foreseeable future, it is likely that reform efforts will focus upon the task of expanding the number of jurisdictions in which victims are accorded a right of active participation in the plea negotiation process. In Canada, the first step, for most provinces and territories, would be the provision of comprehensive – and timely – information to victims about the progress of plea negotiations (a development that has already been implemented in Ontario and Manitoba) and the recognition of the right of victims the be consulted by Crown Counsel (an advance that has already been accomplished in Manitoba with the enactment of the Victims' Bill of Rights (2000)).

The next step in the expansion of victims' rights in relation to the plea bargaining process would be to introduce a variation of the Arizona model, in which victims are granted the right to make oral or written submissions to a judicial hearing that is convened for the specific purpose of accepting or rejecting a proposed plea agreement. This second step would indubitably require a fundamental departure from the current Canadian practice of leaving plea bargaining essentially unregulated. It is certainly arguable that victims' participation in the plea negotiation process will only become "meaningful" if it includes their participation in an open hearing before a judge. Such a hearing would be designed to provide the judiciary with the necessary information for the purpose of determining whether or not a proposed plea is acceptable in terms of the public interest in the sound administration of criminal justice. Critical factors in the exercise of judicial decision–making discretion in this arena would, of necessity, include not only the victims' views as to the appropriateness of any proposed disposition of "their" cases but also the background information that might be furnished by victims (information that could ultimately serve as a valuable corrective to any inaccuracies in the version of events that is proffered by the Crown and the defence). As far as the latter consideration is concerned, it is significant that McGillivray (1997–98) has provided strong support for the view that current Canadian plea bargaining practices may result in a significant distortion in the narrative of the "facts of the case" by the Crown and the defence and may result in a sentence that is not commensurate with the true severity of the offence(s) concerned:

The importance of plea bargaining to the administration of justice is such that it cannot be fundamentally contested. Where it results in the suppression or eradication of relevant and potentially determinative information, then the deeply inadequate sentencing which may result brings the administration of justice into disrepute. The court knows that a bargain has been made only because a guilty plea has been tendered; by lawyerly convention, neither the bargain nor its details are disclosed to the court. Where charges are dropped or stayed, the facts supporting those charges are also suppressed. This is a shadowy and problematic area. (para. 20).

It might be useful to analyze potential reforms to the law and practice concerning plea bargaining in terms of various analytical models that might be hypothesized in the context of the specific issue of victim involvement in plea negotiations. This report has analyzed the existing Canadian jurisprudence concerning the practice of plea negotiations and has compared it with the highly regulated system of plea bargaining, that has evolved in the federal and state courts in the United States. In light of this analysis, it is possible to identify four, distinct models of victim participation in plea discussions. The first two models are based on current trends in Canadian jurisprudence, while the remaining two are based on contemporary law and practice in the United States. The four models are cumulative insofar as Model Two incorporates the main elements of Model One, Model Three incorporates the main elements of Model Two, and Model Four incorporates the main elements of each of the other three models. Models One and Two encapsulate a relatively passive role for victim in the plea bargaining process, while Models Three and Four reflect a comparatively active degree of victim participation in plea discussions.

7.1 Model one

The first model is based on the legislative framework that currently exists in most Canadian provinces and territories. In this model, victims are entitled to receive general information about the progress of the prosecution of "their" defendants, although they must first make a request for such information. In addition, the police and the Crown are required to take the views of victims into account, where they consider it appropriate to do so. There is no specific requirement that the victim be informed about the status of any plea discussions that may take place. Model One, therefore, assigns a distinctly passive role to victims in the prosecution of "their" defendants and does not make any specific provision for the transmission by Crown counsel of information concerning any plea negotiations that might be underway with the defence.

Model One

7.2 Model Two

The second model incorporates the rights to general information about the status of a prosecution that victims enjoy as an essential feature of Model One. However, Model Two significantly enhances these rights by furnishing victims with the opportunity to request specific information about the status of any ongoing plea discussions (a statutory requirement that currently exists in both Manitoba and Ontario). More significantly, Model Two also imposes a specific duty on Crown Counsel to consult with victims about the terms of any proposed plea agreement: at present, only Manitoba has enacted legislation that incorporates this particular element of Model Two. Although Model Two incorporates a prosecutorial duty to consult with victims, it certainly does not include a right of active victim participation in any phase of the process of plea discussions that may be taking place between Crown and defence counsel: therefore, Model Two permits victims to assume a relatively passive role in plea bargaining and accords them – at best – a muted voice in shaping the outcome of the process.

Model Two

7.3 Model Three

Model Three incorporates the rights to information and consultation, which are present in the combination of both Models One and Two. However, Model Three is constructed on the premise that plea bargains must be approved by a judge in an open hearing (as is the case in the U.S. federal courts, under "Rule 11"). Furthermore, Model Three incorporates the requirement that, in general, the trial judge should obtain independent information from a pre–sentence report (prepared by an independent agency) before deciding whether or not to accept or reject a proposed plea agreement (a requirement that currently exists in the U.S. federal courts – as a result of the combined effect of "Rule 11" and the U.S. Sentencing Guidelines). A central feature of Model Three is that it presents the victim with an opportunity to make an oral or written presentation to the trial judge at the hearing that is held to determine whether or not a proposed plea agreement should be accepted. This requirement has not been implemented in plea bargaining hearings held before the federal courts in the United states but it is an essential element in the system of hearings that has been established by legislation in the State of Arizona. Associated with this element of Model Three would be the imposition of a duty on the prosecutor to inform the court of what efforts have been made to inform the victim of his or her right to participate in a plea bargaining hearing and to convey the views of the victim (if known), whenever he or she is not present at the hearing (these are currently legislated requirements in the State of Arizona). Model Three would permit the victims of crime to participate in plea bargaining hearings following a procedure that would be similar to that which operates in the case of sentencing hearings. Clearly, Model Three furnishes crime victims with the opportunity to assume a degree of active participation in the process of plea discussions and also provides them with a forum in which their voices will be heard by judges who have the power to accept or reject any proposed plea agreement. [43]

Model Three

7.4 Model Four

Model Four adds a critical right to the essential elements of Model Three – namely, the right of a victim to veto a proposed plea agreement. This particular right would furnish the victim with a considerable degree of power to affect the outcome of a criminal case. However, at present, Model Four is only a hypothetical model, since no North American jurisdiction has yet implemented it in the context of the plea bargaining process. Indeed, even in the State of Arizona (which currently permits the most comprehensive form of victim participation in relation to plea bargaining), the relevant legislation does not grant victims the right to veto a proposed plea agreement. Nevertheless, Model Four does constitute an option for policy makers and legislators to consider as a means of expanding victims' rights in the criminal justice process and, in conceptual terms, it undoubtedly represents the most active form of victim participation that might currently be contemplated in relation to the process of plea bargaining.

Model Four

These four models of victim participation in plea bargaining may serve as a basis not only for understanding the nature and content of contemporary jurisprudence and practice in Canada, but also for clarifying future avenues of reform. What is clear is that active participation by victims in the process of plea negotiations in Canada will require fundamental legislative reforms at both the federal and provincial levels of jurisdiction. Hopefully, Models Three and Four furnish Canada's policy makers and legislators with useful signposts as they travel along on the challenging road to future reform.

As model three provides an active role for victims in the plea negotiation process without providing a right to veto such agreements as in model four, this may be the most viable option. Such an initiative would require action by the Parliament of Canada to amend the Criminal Code in a manner that would provide for overt judicial regulation of plea negotiations in an open forum; for entrenchment of the right of victims to make written or oral submissions to the court during a plea–bargaining hearing; and for the imposition of the requirement that judges should postpone making a decision, as to whether or not to accept a proposed plea bargain, until after they have received a pre–sentence report from an independent agency. Implementation of Model Three would also require legislative action by the various provinces and territories. More specifically, provincial and territorial legislatures would need to impose on Crown counsel the duty to provide relevant information to victims about the prosecution of their cases and the duty to consult with victims concerning such issues as plea negotiations. In addition, the provinces and territories would need to provide victim services that would assist victims to prepare statements for plea–bargaining hearings and that would ensure that victims fully comprehend their options in this complex – and frequently misunderstood – process.

[43] In a recent report, the U.S. Department of Justice's Office for Victims of Crime (2001) emphasizes the importance for victims of the right to be present during criminal justice proceedings. The report points out that 39 states have granted victims the right to attend such proceedings, including trials. In the words of the report, "for crime victims and their families, the right to be present during criminal justice proceedings is an important one. Victims want to see justice at work" (p.1).