Plea Bargaining

Plea Bargaining is a form of negotiation between a person charged with an offence and a crown prosecutor. The accused person usually negotiates through his counsel. Plea bargaining can take several forms. For example, an accused charged with several offences may agree to plead guilty to some of these offences while the Crown agrees to withdraw the remaining charges. It may also take the form of an accused pleading guilty in exchange for the Crown recommending to the court a lesser sentence than the accused might otherwise risk receiving. As well, the Crown and the accused often negotiate over the facts upon which a guilty plea will be entered.

In some cases, the Crown will agree not to allege an aggravating fact, which is nonessential to the admission of guilt, in return for the accused agreeing to plead guilty. For example, the accused might agree to plead guilty to the robbery of a bank if the Crown accepts the accused's version that while committing the robbery the handgun he was carrying was unloaded rather than loaded. Obviously, a concession of this nature by the Crown does not affect the validity of the guilty plea but could result in a lesser sentence.

Plea bargaining usually takes place before the actual trial, in which case, if an agreement is reached, the witnesses (upon whom the Crown was relying to prove its case) are spared the necessity of having to attend court. One of the major motivations causing the Crown to become involved in plea bargaining is its desire to save civilian witnesses the inconvenience and, in some cases (especially for victims), the trauma of having to testify at a criminal trial.

Plea negotiations may also take place during the course of a trial; for instance, when unexpected evidence arises at trial and greatly increases the risk to either the Crown or the defence of not securing a conviction or acquittal, respectively. Also, negotiations concerning the disposition of a case may even arise in the appeal context; for example, where the Crown appeals and the defence cross-appeals, both sides may agree, if it is mutually satisfactory, to abandon their respective appeals.

Plea bargaining has essentially 2 main purposes. The first is to increase certainty. The Criminal Code generally allows judges, for most crimes, a wide discretion concerning the imposition of sentences. Consequently, it is often difficult for the Crown or the defence to assess exactly what sentence will be imposed. Similarly, the outcome of a trial, whether before a judge or a judge and jury, can sometimes be difficult to predict. Thus, either the Crown or the defence may be willing to make certain sacrifices in order to obtain greater certainty and to insure that their most important objective is achieved.

Secondly, plea bargaining is also entered into in order to save valuable court time and, more importantly, to save the expense and inconvenience of a criminal trial. It is a fact of life in the Canadian criminal justice system that the Crown will usually be more disposed to consider plea negotiations when it is involved in a lengthy and complicated prosecution that requires a significant expenditure of funds to obtain the evidence or witnesses required by the Crown to prove its case.

Although in a sense plea bargaining may take the determination of a case out of the court's hands (for instance, when the Crown decides to accept a guilty plea to some of the charges and withdraw the remainder), it is subject to limitations. For example, although the Crown may recommend a specific sentence to the court, the imposition of sentence is ultimately the court's responsibility, and the court may reject the Crown's recommendation where it feels that recommendation is inappropriate.

Moreover, it has been held by various appellate courts in Canada that the Crown is divisible; in other words, the Crown can occasionally on appeal change its position despite a previous agreement made by the prosecutor in the court below, but such a change is only allowed where the Crown can demonstrate good reason for taking a different position. It is important to realize that the judge hearing the case is never a party to this agreement nor is he involved in the plea negotiations. Thus there is always the danger that the judge might not adopt the position taken by counsel as a result of the plea negotiations.

Finally, when plea negotiations do not result in an agreement or where the circumstances of a particular case make it inappropriate for counsel to engage in plea bargaining, then the accused will either take the case to trial or simply plead guilty without any understanding having been reached with the Crown concerning the process of sentencing.