1970

SCC/appellate

R. v. Agozzino, [1970] 1 C.C.C. 380.

• Accused charged with possession of counterfeit money; defence counsel agreement with Crown not to seek imprisonment for guilty plea; Crown appealed claiming inadequate sentence
• Court interprets plea bargain as a contract; accused relied on plea bargain agreement
• Para 5: “There is evidence before us to indicate that had it not been for the position taken by the Crown which was subsequently adopted by the magistrate, the accused would not have pleaded guilty. The circumstances, therefore, dictate a dismissal of the Crown’s appeal as to the sentence even though, had we thought ourselves at liberty to consider its propriety, we probably would have come to a different conclusion.”

R. v. Wood, [1975] 26 C.C.C. (2d) 100.

• Sex offense; Crown visited Judge in chambers to discuss sentencing to avoid jail; held that accused was prejudiced by Crown telling defence that jail sentence not sought
• “a judge has no place in plea bargaining.” (para 34)

Canada (Attorney General) v. Roy, [1972] 18 C.R.N.S. 89.

• Crown suggested $150 fine; 3 principles for plea bargaining
• “1. Plea bargaining is not to be regarded with favour. In the imposition of sentence the court, whether in first instance or in appeal, is not bound by the suggestions made by Crown counsel. 2. Where there has been a plea of guilty and Crown counsel recommends a sentence, a court, before accepting the plea, should satisfy itself that the accused fully understands that his fate is, within the limits set by law, in the discretion of the judge, and that the latter is not bound by the suggestions or opinions of Crown counsel. If the accused does not understand this, the guilty plea ought not to be accepted. 3. The Crown, like any other litigant, ought not to be heard to repudiate before an appellate court the position taken by its counsel in the trial court, except for the gravest possible reasons. Such reasons might be where the sentence was an illegal one, or where the Crown can demonstrate that its counsel had in some way been misled, or finally, where 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.” (para 17)

R. v. Draskovic, 5 C.C.C. (2d) 186.

• Accused negotiated with officer for guilty plea if others charged dropped; admissibility issue; voluntary and appeal dismissed
• “Without expressing any views as to whether there exists in Ontario or Canada any privilege with respect to discussions between counsel for the accused and counsel for the Crown with respect to what charges will be proceeded with and what pleas will be made, commonly referred to as “plea bargaining”, I am of the opinion that the topic is irrelevant in this case. What occurred was in no sense “plea bargaining” but was simply a volunteered statement made by the accused to the detective, who had no authority to do anything other than report the making of the statement to someone else.” (para 6)

 

Official reports

Ontario Law Reform Commission, “Fourth Annual Report, 1970” (1970). Ontario Law Reform Commission. 70.

• “In our view plea-bargaining can’t be justified. To decide upon a defendant’s guilt or sentence in accordance with what he’s prepared to accept and bargain for is like determining a student’s grade by reference, not to the work he’s done, but the bribe he’s offered his professor” (p 14)

Ontario Law Reform Commission, “Report on Administration of Ontario Courts, Part II” (1973) Ontario Law Reform Commission 88.

• “The abuses which are said to be inherent in this practice are that (a) a false impression is created in the mind of the accused as to the extent of the influence of the prosecutor in securing a specific sentence; (b) there is a tendency towards the habitual laying of charges in a manner intentionally designed to put the prosecutor in the position to offer an apparent concession in the reduction of either the number or seriousness of charges. Overcharging, charging a more serious offence than would appear justified on the facts, and charging offences with a fixed minimum penalty, all fall into this category; and (c) the existence of the practice leads to an expectation on the part of the accused that a “deal” will be offered and he may use delaying tactics (such as dismissing his counsel on the eve of trial or electing trial in another court when he intends to plead guilty eventually), simply for the purpose of exerting pressure on the prosecutor to offer a concession.” (p 120)

Scholarship

Gerald A Ferguson, “The Role of the Judge in Plea Bargaining” (1972) 15:1 Crim LQ 26

• Analysis and argument for the abolishment of judicial plea bargaining
• “The argument would be that the pressure becomes undue when the judge proposes the bargain because there is certainty of differential treatment, whereas when a prosecutor promises he will recommend sentence leniency or even charge reduction, there is not the same certainty of sentence differential, that is to say, the accused can only hope that leniency will result since the prosecutor is not ultimately the person who imposes sentence…” (p 36)

Arthur D Klein, “Plea Bargaining” (1972) 14:3 Crim LQ 289.

• A comparative (England and US) of Canadian approaches to plea bargaining; Canadian caselaw pre-1970
• “In the special lectures given at Osgoode Hall in 1969 and 1970 under the auspices of The Law Society of Upper Canada there were lengthy dissertations on the subject of plea discussions and sentence negotiations, and a great deal of additional ground was covered as to the practice of Crown counsel and defence counsel upon a plea of “Not Guilty”.” (p 300)
• “Under most circumstances it is not necessary, practicable, or desirable, except perhaps in cases of particular prominence, that any statement be made by counsel as to why a certain course is being taken, such as proceeding with certain charges, withdrawing other charges, accepting pleas of guilty to certain charges or to lesser offences, or dis-continuing the prosecution altogether, and, in the light of experience, there is no occasion for a provincial judge to comment on the withdrawal of a charge or the acceptance of a plea of guilty to a lesser charge.” (p 305)

Gerard A Ferguson & Darrell W Roberts, “Plea Bargaining: Directions for Canadian Reform” (1974) 52:4 Can B Rev 497.

• Descriptive overview of plea bargaining in Canada pre-1970s; argues that despite challenges to voluntariness, the accused would feel the same pressure to plead guilty given attractive offers
• “In offering benefits or concessions to accused persons in order to secure guilty pleas, plea bargaining encourage both the guilty and the innocent to plead guilty” (p 544-45)

Howard Shapray, “The Prosecutor as a Minister of Justice: A Critical Appraisal” (1969) 15:1 McGill L J 124.

• Descriptive overview of English and American plea bargaining compared with Canada; early rebuttal to efficiency-based arguments and a lack of a principled approach

Brian A Grosman, “The Role of the Prosecutor in Canada” (1970) 18:3 Am J Comp L 498.

• Descriptive overview of criminal prosecution in Canada; generally concludes that the Canadian system is similar to the US

 

Other jurisdictions

R. v. Turner, [1970] 2 All E.R. 281 (C.A.).

• English Court of Appeal
• Accused charged with theft and pleaded not guilty; counsel advised pleading guilty, and accused only accepted after believing it was the judge’s view; appeal nullified guilty plea because accused was deceived
• Lord Parker: “idle to think that he really had a free choice” (p 284); “could be taken to be undue pressure on the accused, thus depriving him of that complete freedom of choice which is essential.” (p 285)
• Judicial plea bargaining; outlined issues related to plea bargaining and sparked subsequent scholarly commentary

Brady v US, 397 US 742 (1970).

• Not coercion if the defendant accepts plea to avoid death penalty

Bordenkircher v. Hayes, 434 US 357 (1978).

• Not violate due process of prosecutor threatens to indict with more serious charges if plea is refused

North Carolina v. Alford,400 U.S. 25 (1970).

• Alford plea allows the accused to maintain their innocence

Brady v. United States, 397 U.S. 742 (1970)

• Reserving judgment on the constitutionality of plea bargains

American Bar Association, Standards Relating to Pleas of Guilty 3 & 60-62 (Approved Draft, 1968).

• ABA criticizes the use of the terms “plea negotiation” and it suggesting something improper

Herbert S Miller, William McDonald & James A Cramer, Plea Bargaining in the United States (National Institute of Law Enforcement and Criminal Justice: 1978).

• Comprehensive descriptive overview of plea bargaining in the US during the 70s; somewhat critical posture; see executive summary on xii

Albert W Alschuler, “The Trial Judge’s Role in Plea Bargaining, Part I” (1976) 76:7 Colum L Rev 1059.

• Descriptive overview of the role of judges; argues that judges can address bad prosecution and defense

1980

SCC/appellate

Morrison v. R., [1981] 63 C.C.C. (2d) 527.

• Drug sold to undercover officer; Crown repudiating plea bargain agreement in submissions to sentence; court not bound by plea bargain agreement

R. v. Boutilier, [1981] 48 N.S.R. (2d) 179.

• Crown appealed sentence related to plea agreement; leave to appeal dismissed
• “In view of this arrangement and the fact that we do not necessarily have all the facts associated with such a bargain, this Court is not prepared to grant the Crown leave to appeal from the sentence imposed by the trial magistrate.” (para 3)

R. v. Goodwin, [1981] 43 N.S.R. (2d) 106.

• Attempted robbery; Crown not to repudiate plea bargain position on appeal when sentence not grossly insufficient
• “bargain is a bargain and, if the Crown does not wish to be bound by it, the simple solution is to make no bargain at all” (para 267)

Official reports

Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (Ottawa: Supply and Services Canada, 1987)

• “Commission recommends a mechanism whereby the Crown prosecutor would be required to justify in open court a plea bargain agreement reached by the parties either in private or in chambers.” (p 428)

Law Reform Commission of Canada, Working Paper no 60: Plea Discussions and Agreements (Ottawa: Canadian Law Reform Commission, 1989).

• 23 recommendations (with commentary); summary p 67-71

Simon N Verdun-Jones & Alison Hatch, Plea Bargaining and Sentencing Guidelines (Ottawa: Department of Justice Canada, 1988)

• Comparative look from US law; 17 recommendations

Scholarship

David Vanek, “Prosecutorial Discretion” (1988) 30:2 Crim LQ 219.

• Overview of prosecutorial discretion understood as the freedom of choice exercised in matters of criminal offences in their authority
• “The disposition of criminal charges on the basis of a “deal” made between the Crown prosecutor and defence counsel constitutes plea bargaining. The various vehicles for the exercise of Crown discretion above-discussed, particularly the alleged absolute right to withdraw charges, are the devices by which the criminal law is administered, in large measure, not by decisions of judges in open court, but by Crown prosecutors through settlements made out of court and in secret that the judges are invited to endorse and which they may often stamp with approval as a valid exercise of prosecutorial discretion.” (p 235)

Other jurisdictions

Gene Grossman & Michael Katz, “Plea Bargaining and Social Welfare” (1983) 73:4 The American Economic Review 749.

• Argument in favor of plea bargaining: acts as insurance for risk-averse public and screens the guilty from innocent defendants

Terance D Miethe, “Charging and Plea Bargaining Practices under Determinate Sentencing: An Investigation of the Hydraulic Displacement of Discretion” (1987) 78:1 J Crim L & Criminology 155.

• An early look into the effects of prosecutorial (yet not judicial due to determinate sentencing) discretion in plea bargaining practices in the US; description of a “hydraulic” or zero-sum effect of discretion for policy aims

1990

SCC/appellate

R. v. Halvorsen, [1994] 50 B.C.A.C. 87.

• Armed robbery and guilty plea; accused applied to strike guilty plea claiming prior plea bargain and defense counsel swore affidavit; appeal allowed
•  “In my opinion, the trial judge did not give sufficient weight to the fact that the guilty plea to the robbery charge was conditional upon the Crown not proceeding with the firearm charge.” (para 22)

R. v. Collard, [1997] 123 Man. R. (2d) 154.

• Dangerous driving charge; accused entered plea; changed his mind after entering guilty plea and appealed; appeal dismissed

R. v. Pashe, [1995] 91 W.A.C. 61.

• Criminal negligent; accused pleaded guilty; judge refused to accept recommendations; appeal allowed—trial judge did not have good cause to reject recommendations
• “Plea bargaining has become a routine part of the process of handling criminal cases. The bargaining process is undermined if the resulting compromise recommendation is too readily rejected by the sentencing judge.” (para 11)

R. v. Closs, [1998] 105 O.A.C. 392.

• “The justice system acknowledges and encourages plea-bargaining and must show some resistance to undoing a bargain. Especially one whereby the applicant obtained benefit for his friends and can no longer put that chip back on the table.” (para 11)

R. v. Burlingham, [1995] 2 S.C.R. 206.

• Murder; accused offer plea bargain from police for lesser charge; police should have offered plea bargain to counsel; appeal allowed
• “Furthermore, I conclude that s. 10(b) mandates the Crown or police, whenever offering a plea bargain, to tender that offer either to accused’s counsel or to the accused while in the presence of his or her counsel, unless the accused has expressly waived the right to counsel. It is consequently a constitutional infringement to place such an offer directly to an accused, especially (as in the present appeal) when the police coercively leave it open only for the short period of time during which they know defence counsel to be unavailable.” (para 21)

R. v. Pawliuk, 2001 BCCA 13.

• Murder and joint charge; plea agreement conditional on acceptance of both accused; condition not an abuse of process
• “While this colourful language underscores the notion that a plea bargain is a special sort of agreement between the Crown and the accused, it also suggests that the formation of the agreement is in many ways analogous to the formation of a contract. Once a plea agreement is reached and the accused has fulfilled part of the bargain, it is improper for the Crown to renege on the agreement.” (para 52)

Official reports

Ontario Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions, Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (Toronto: Ministry of the Attorney General, 1993).

• “properly conducted, benefit not only the accused, but also victims, witnesses, counsel, and the administration of justice generally” (p 281)

Scholarship

Stanley A Cohen & Anthony N Doob, “Public Attitudes to Plea Bargaining” (1989) 32:1 Crim LQ 85.

• Canadian attitudes towards plea bargaining are negative; academics believe it treats the accused unfairly while the public believes it is too lenient on defendants

Other jurisdictions

United States v. Redondo-Lemos, 955 F.2d 1296 (9th Cir. 1992).

• “Such decisions [to plea-bargain] are normally made as a result of a careful professional judgment as to the strength of the evidence, the availability of resources, the visibility of the crime and the likely deterrent effect on the particular defendant and others similarly situated. Even were it able to collect, understand and balance all of these factors, a court would find it nearly impossible to lay down guidelines to be followed by prosecutors in future cases. We would be left with prosecutors not knowing when to prosecute and judges not having time to judge.” (p 1299)

American Bar Association, ABA Standards for Criminal Justice: Prosecution and Defense Function Standards, 3d ed (Washington, DC: American Bar Association, 1993).

• “a prosecutor’s refusal to honor a plea agreement concerning a recommendation to the court after a guilty plea is made undermines the voluntariness of the plea and results in fundamental unfairness to the defendant” (p 89)

Robert E Scott & William J Stuntz, “Plea Bargaining as Contract” (1992) 101:8 Yale LJ 1909.

• Plea bargains conceived through common law contract law doctrine; argument that plea bargains are most coherent when understood through the lens of contract law principles

2000

SCC/appellate

R. v. Sinclair, 2004 MBCA 48.

• Assault causing bodily hard; joint submissions based on plea bargain; Criminal Code provisions in s. 606(1.1) and (1.2) and voluntariness of plea
• “There is a continuum in the spectrum of plea bargaining and joint submissions as to sentence. In some cases, the Crown’s case has some flaw or weakness and the accused agrees to give up his or her right to a trial and to plead guilty in exchange for some consideration. This consideration may take the form of a reduction in the original charge, withdrawal of other charges or an agreement to jointly recommend a more lenient sentence than would be likely after a guilty verdict at trial. Evidence always varies in strength and there is always uncertainty in the trial process. In other cases, plea negotiations have become accepted as a means to expedite the administration of criminal justice.” (para 13)

R. v. B. (J.), 2003 MBCA 92.

• Sexual assault; plea bargain for stay of other counts; sentencing rejected joint submission; appeal allowed
• “Before us the Crown left no doubt that this was truly a case of “quid pro quo,” and that the plea bargain was of considerable benefit to the Crown itself. The certainty it achieved for the appellant was also achieved for the Crown, and the guilty plea resolved the difficulties facing the Crown. The victim, and her sister, were spared having to testify. All this was known by the sentencing judge.” (para 23)

R. v. Oxby, 2000 SKCA 129.

• First degree murder; guilty plea entered but sentenced to 20 years; appealed to expunge guilty plea on grounds of duress; appeal dismissed
• “Mr. Oxby’s diagnosis is that of Antisocial Personality Disorder. It is my opinion although he is intellectually able to appreciate the nature of the interaction with his lawyer and was able to communicate to his lawyer in terms of agreeing to a plea bargain, his denial, rationalization and detachment for the legal process with which he was involved, predisposed him to potentially entering into a plea bargain which from a legal perspective created a vulnerability in terms of his being able to instruct his lawyer fully. It’s also my opinion that he is quite capable of lying, manipulating and being deceitful when it serves his best interests.” (para 16)

Re Ravelston Corp., 2007 ONCA 135.

• Court-appointed receiver recommended guilty plea; civil liability
• “In our view, it was clearly open to the motion judge to accept the receiver’s assessment that a guilty plea to one count and an acquittal on all other counts under this plea agreement carried less risk of exposure to civil liability that a conviction on all counts.” (para 9)

Official reports

Canada, Department of Justice, Victim Participation in the Plea Negotiation Process in Canada: A Review of the Literature and Four Models for Law Reform, by Simon N Verdun-Jones & Adamira A Tijerino (Ottawa: DOJ, 2002).

• A descriptive overview of plea bargaining practices in Canada and its historical evolution; critical of the lack of formal process for plea bargaining in Canada; a comparative look at the US
• Argues for the participation of victims in the plea bargaining process and suggests further ratification in legislation

Ministry of the Attorney General, Resolution Discussions, (Ontario: Crown Policy Manual Resolution Discussions: 2005).

• “The term “resolution discussion” refers to the process during which defence and Crown  counsel discuss the evidence and likely outcome of a criminal prosecution with a view to achieving results that advance the administration of justice. Resolution discussions encompass much more than simply plea negotiations. Resolution discussions include any discussion between counsel aimed at resolving any issues that a criminal prosecution raises.” (p 1)
• “There are some fundamental principles of resolution discussions that are binding directives: • Crown counsel must not accept a guilty plea to a charge knowing that the accused is innocent • Crown counsel must not knowingly accept a guilty plea to a charge when a material element of that charge can never be proven unless that fact is fully disclosed to the defence • Crown counsel must not purport to bind the Attorney General’s right to appeal  any sentence • Unless there are exceptional circumstances, Crown counsel must honour all agreements reached during resolution discussions.” (p 1-2)

Scholarship

Candace McCoy, “Plea Bargaining as Coercion: The Trial Penalty and Plea Bargaining Reform” (2005) 50:Issues 1 & 2 Crim LQ 67.

• An empirical study of case prison terms; jury trial sentences were longer than guilty please after controlling for numerous factors

Gregory Lafontaine & Vincenzo Rondinelli, “Plea Bargaining and the Modern Criminal Defence Lawyer Negotiating Guilt and the Economics of 21st Century Criminal Justice” (2005) 50:Issues 1 & 2 Crim LQ 108.

• A practitioner’s perspective on plea bargaining; provides a descriptive historical overview; argues the need for plea bargaining and suggestive of efficiency-based views

Milton Heumann, “Back to the Future: The Centrality of Plea Bargaining in the Criminal Justice System” (2003) 18:2 Can JL & Soc 133.

• A look into the relationship between case pressure and plea bargaining; argues for a nuanced view and pulls apart this relation, then presents some suggestions

Other jurisdictions

Stephanos Bibas, “Plea Bargaining outside the Shadow of Trial” (2004) Harvard Law Review 117:8 2463.

• Influential conception of plea bargaining; argues against efficiency-based views

Oren Bar-Gill & Omri Ben-Shahar, “The Prisoners’ (Plea Bargain) Dilemma” (2009) Journal of Legal Analysis 1.

• A look into prosecutorial ethics and decision-making given the limitations of the criminal process; argues that inequalities in bargaining power is a collective action problem for the accused
• The upshot of this argument is that voluntariness cannot support arguments for plea bargaining

Michael M O’Hear, “Plea Bargaining and Procedural Justice” (2008) 42:2 Ga L Rev 407.

• An analysis of plea bargaining practices from a procedural (not distributive) justice approach; draws on psychology research for the perception of procedural justice
• Argues that plea bargaining is procedural just insofar as it gives the accused an opportunity to tell their side before making an offer and ensuring they are fully informed of the offer without coercive tactics

2010

SCC/appellate

R. v. O. (B.J.), 2010 NLCA 19.

• Sex assault; joint recommendation rejected; no quid pro quo as result of guilty plea
• “The judge says that 14 months conditional is too lenient, that it undermines deterrence. It is not surprising that the sentence is seen as lenient. That is what results when there is a plea bargain. But, is it so light that it would undermine the deterrent effect of the ordinary expectation of a sentence for such offences? The answer is no.” (para 53)

R. v. Oxford, 2010 NLCA 45.

• Plea bargain of 19 months and 2 years probation; trial judge reject joint submission; accused appealed sentence; appeal allowed
• “Whatever one’s personal views may be as to the appropriateness or utility of plea bargaining in our criminal justice system, the fact remains that for at least the past twenty years it has been judicially sanctioned at the appellate court level.” (para 56)
• “Proper plea bargaining presupposes, of course, full disclosure by the Crown, informed un-coerced consent by the accused to a plea of guilty in return for an agreed submission on sentence with proper procedural safeguards throughout the process, and an accepted factual underpinning supporting the plea. It is in that context that the ensuing comments about the acceptance or rejection of joint submissions must be understood. (para 58)

R. v. Malcolm, 2015 MBCA 75.

• Drug trafficking; judge accepted joint recommendation for CSO; accused appealed and dismissed
• “The sentence imposed results from a true plea bargain and as such cannot be said to be demonstrably unfit” (para 7
• “in this case the essence of the plea bargain and joint submission was placed on the record in open court giving the sentencing judge a solid factual basis on which to make a reasoned decision. The plea bargain was beneficial to the accused. The charge of trafficking was far more serious than the modified charge of possessing proceeds of crime. He does not seek to set aside the plea bargain or his guilty plea, but only to parse out the sentence that stems from that plea bargain.” (para 10)

R. v. Anthony-Cook, 2016 SCC 43.

• Manslaughter; court recognizing plea bargaining as key for efficiency
• “Resolution discussions between Crown and defence counsel are not only commonplace in the criminal justice system, they are essential. Properly conducted, they permit the system to function smoothly and efficiently.” (para 1)
• “Joint submissions on sentence — that is, when Crown and defence counsel agree to recommend a particular sentence to the judge, in exchange for the accused entering a plea of guilty — are a subset of resolution discussions.1 They are both an accepted and acceptable means of plea resolution. They occur every day in courtrooms across this country and they are vital to the efficient operation of the criminal justice system.” (para 2)

R. v. Nixon, 2011 SCC 34.

• Impaired driving; prosecutors given authority to renege on plea deals

Official reports   

Federal Provincial and Territorial Heads of Prosecution, Innocence at Stake (Ottawa: Ministry of Justice, 2018).

Bruce Frederick and Don Stemen, The Anatomy of Discretion: An Analysis of Prosecutorial Decision Making – Technical Report (New York: The Vera Institute of Justice, 2012).

Scholarship

David Ireland, “Bargaining for Expedience: The Overuse of Joint Recommendations on Sentence” (2015) 38:1 Man LJ 273.

• Preventing wrongful convictions; chapter 9 outlines false guilty pleas

Jerome Kennedy, “Plea Bargains and Wrongful Convictions” (2016) 63:4 Crim LQ 556.

Other jurisdictions

Lindsey Devers, “Plea and Charge Bargaining” (2011) Bureau of Justice Assistance.

• “According to the Bureau of Justice Statistics (2005), in 2003 there were 75,573 cases disposed of in federal district court by trial or plea. Of these, about 95 percent were disposed of by a guilty plea (Pastore and Maguire, 2003).” (p 1)
• “To date, two studies have investigated the impact of what happens to the system when plea bargaining is abolished. These studies found an increase in the number of cases brought to trial when plea bargaining was limited, and over time the number of convictions became more consistent (Heumann and Loftin, 1979; Holmes et al., 1992).” (p 3)

David S Abrams, “Is Pleading Really a Bargain” (2011) Special Issue J Empirical Legal Stud 8:200.