Plea Bargains

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Introduction

A plea bargain is an agreement between the Crown and defence whereby the defence agrees to plead guilty to particular offences in exchange for a particular proposal on sentence. If the defence accepts the offer on sentence, the agreement is put the judge as a jointly recommended sentence.

Joint Recommendations

A joint recommendation (JR) is an agreement on penalty between the Crown and Defence to present a single penalty recommendation that the judge is asked to adopt.

The proper standard to apply to a JR is the "public interest test".[1]

Public Interest Test'
Where there is a joint recommendation or plea deal put before a judge the "judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest".[2]

The use of the "less stringent" standards of the "fitness test" or "demonstrably unfit" test are now defunct.[3] This further eliminates the use of a blended test combining the unfitness and public interest tests.[4]

The rationale behind allowing JRs is to protect court resources which would otherwise be overwhelmed under the volume of trials required. However, some have brought this rationale into question.[5]

A JR does not need to encompass all aspects of the sentence. There can be a joint recommendation on part of a sentence, such as the form of penalty, while still keeping aspects of the penalty in dispute, such as the length of the penalty, conditions associated with the penalty, or ancillary orders.[6]

A joint submission often indicates a lower range of sentence.[7] The motivation for an agreement is often due to a weak aspect in the Crown's case or the risk of the judge giving a higher penalty than what would sought by defence without an agreement.

A joint recommendation may even be accepted where it is more lenient than the lower end of the normal range.[8]

Sentences arising from a joint recommendation "have little or no precedential value."[9]

A "low end" joint recommendation can be based upon the "potential frailties of the Crown's case in the event of trial".[10]

  1. R v Anthony-Cook, 2016 SCC 43 (CanLII) at para 32 per Moldaver J
  2. Anthony-Cook at para 32
  3. See R v Anthony-Cook
  4. See R v Anthony-Cook
    R v Flanagan, 2012 SKCA 45 (CanLII), 393 Sask.R. 126 at para 12 citing both unfitness and public interests test
  5. R v Keeping, 2013 CanLII 64708 (NL PC)
  6. e.g. R v Parsons, 2012 CanLII 81320 (NL SCTD) - length of CSO and ancillary orders in dispute alone
  7. R v Kane 2012 NLCA 53 (CanLII)
  8. R v Oake 2010 NLCA 19 (CanLII) at para 64
  9. R v Johnston, 2011 NLCA 56 (CanLII)
    R v Johnson, 2010 ABQB 546 (CanLII)
    R v Benlolo 2006 CanLII 19284 (ON CA), (2006), 81 O.R. (3d) 440 (C.A.)
  10. R v Bungay-Lloyd, 2016 NSSC 110 (CanLII) at para 18

Deference

A joint recommended sentence is a sentence for which the courts do not readily overturn. [1] The court may only do so where the sentence in not within a reasonably appropriate range for the circumstances.[2] The judge must give reasons for not adopting a joint recommendation.

A judge should give serious consideration to a joint sentencing proposal.[3]

There is less weight given to "joint recommendations" that do not involve a "quid pro quo" (i.e. some reduced recommendation on sentence).[4] Likewise, where the accused was without counsel less deference is given.[5]

  1. R v J.W.I.B., 2003 MBCA 92 (CanLII)
    R v Pashe (S.J.) 1995 CanLII 6256 (MB C.A.)
  2. R v Smith, 2004 BCCA 657 (CanLII)
    R v Gartner, 2010 BCCA 600 (CanLII)
    R v Wickstrom, 2011 BCSC 745 (CanLII)
    R v Cerasuolo 2001 CanLII 24172 (ON CA)
    R v DeSousa, 2012 ONCA 254 (CanLII)
  3. R v GWC, 2000 ABCA 333 (CanLII) at para 17
  4. R v Wolonciej, 2011 MBCA 91 (CanLII) at para 10
  5. R v Bambrick, 2011 NLCA 79 (CanLII) at para 14

When Not Followed

If a judge has reservations to adopt a joint recommendations it should allow counsel an opportunity to respond.[1] Likewise, where a judge is looking to go beyond the range set by counsel, the judge should equally provide notice to the parties before going above or below the range.[2] Similarly, where a judge wishes to impose a condition that was not contemplated by either party nor could it have been easily foreseen, then the judge should also provide notice before doing so.[3]

A judge adding probation on a joint recommendation without notice can be set aside. [4]

A judge need not accept a joint recommendation that is "facially disproportionate" to the offence.[5]

  1. R v GWC, 2000 ABCA 333 (CanLII) at para 26
  2. R v Hood, 2011 ABCA 169 (CanLII) at para 14
    R v Abel, 2011 NWTCA 4 (CanLII) at para 23
    R v Burback, 2012 ABCA 30 (CanLII)
  3. R v Beal, 2011 ABCA 35 (CanLII)
  4. R v Wickstrom, 2011 BCSC 745 (CanLII)
  5. R v Gibson, 2015 ABCA 41 (CanLII), at para 17

Notice to Victims

See also: Role of the Victim and Third Parties

Section 606 (4.1) requires the judge after accepting a guilty plea for serious personal injury offences to inquire of the prosecutor whether "reasonable steps were taken to inform the victims of the agreement". Failing to take reasonable steps will not necessarily stop sentencing but will require the prosecutor to take steps at a later point to inform the victims.

Where the offence is prosecuted by indictment and punishable by imprisonment of 5 years or more, s. 606(4.2) requires the judge shall inquire whether any victims notified them of their desire to be informed of the agreement, and if so, whether reasonable step were taken to inform them.

Other Issues

Where the accused misapprehended the joint recommendation, it can be grounds for a successful appeal of a sentence.[1] Where an offender is unaware of a significant consequence of a particular sentence agreed upon, such as deportation without appeal, the court may reopen the consideration of sentence.[2]

  1. e.g. R v Kinney, 2011 SKCA 122 (CanLII)
  2. R v Jamieson, 2011 NSCA 122 (CanLII)

Repudiating a Plea Bargain

See also: Guilty Plea and Abuse of Process

If the Crown renegs on a plea deal on sentence, the Defence may make application to withdraw the guilty plea.[1] It may also be grounds for a stay of proceedings due to abuse of process.

  1. R v M. (R.N.-Z.) 2006 CanLII 32999 (ON S.C.)
    R v Chen, 2009 ONCJ 453 (CanLII)
    see also: R v Tallon, 2003 CanLII 27268 (ON C.A.)

Using Plea Bargaining as Evidence

Generally, a judge should not admit evidence surrounding a plea bargain unless it is in relation to a joint recommended sentence or whether it goes to the guilt or innocence of the accused.[1] This can include questions of credibility of a co-accused who was offered a lesser sentence for cooperation.[2]

Once a proposal for settlement is rejected and a trial is held, "previous negotiations [become] irrelevant", including for the purpose of sentencing.[3]

  1. R v Bremner, 2006 NSSC 367 (CanLII), at paras 1 to 9
  2. Bremner at para 6
  3. Bremner at para 8
    R v Howell, 1995 CanLII 4282 (NS CA), (1996), 103 CCC (3d) 302 at para 100
    See R v Pabani, 1994 CanLII 8723 (ON CA), (1994), 29 C.R. (4th) 364
    R v White (1982), 39 Nfld. and P.E.I.R. 196 (Nfld. C.A.) (*no link)

Case Digests