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".

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".

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

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.

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.

A joint submission often indicates a lower range of sentence. 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 be 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.

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

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

Process of Evaluating Joint Recommendations
Proper considerations when the adopt a joint submission should include the following:

1. the joint submission should be evaluated "on an 'as-is' basis" meaning that all individual terms, conditions and orders that were either included omitted should be considered an expression of the intention of the parties and should only be varied individually on the "public interest" standard.
2. The public interest test is applied anytime the judge is considering to "jump" or "undercut" a joint recommendation.
3. the judge may need to know about the circumstances leading to the joint recommendation where it is contentious. The Judge may consider the benefits obtained by the Crown and the concessions made by the defence as factors when the sentence looks otherwise unduly lenient.

Summation of the Facts
Counsel are obliged to give a full description and account "of the circumstances of the offender, the offence, and the joint submission". They must ensure that they "amply justify their position on the facts of the case as presented in open court".

Exceptions to this obligation exist where there are "safety or privacy concerns", or where an ongoing investigation may be jeopardized. Instead, counsel must consider other alternatives to to communicate these considerations to the court.

Undercutting a Recommendation
Where the judge is considering to undercut a joint recommendation, different considerations may be taken given that the concerns do not include fair trial rights or undermine the confidence in the certainty of a plea. Rather, the judge should take special care where the accused is self-represented or where there is "power imbalance" between the parties, which may undermine the public interest.

Illegal Terms of a Joint Recommendations
Where a joint recommendation does not include mandatory terms or orders, or is otherwise illegal, the public interest cannot justify supporting it.

Notice of Disagreement and Option to Withdraw Guilty Plea
Where a judge is concerned with the adoption of the plea agreement, they must notify counsel and give them an opportunity to provide further submissions. The judge may also want to provide counsel with an opportunity to apply to withdraw the guilty plea.

Obligation to Provide Reasons for Departing from Recommendation
Where the judge ultimately decides to reject the recommendation, the judge must provide "clear and cogent reasons" for doing so.

Deference

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

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

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

"Joint Recommendation" After Trial

A common recommendation on sentence by both counsel after trial is not a "joint submission" as there was no exchange of sentence for a guilty plea. Consequently, the deference accorded to joint submissions is not required.

When Not Followed

If a judge has reservations to adopt a joint recommendation it should allow counsel an opportunity to respond. 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. 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.

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

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

Notice to Victims

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 steps 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. 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.

Repudiating a Plea Bargain

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

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. This can include questions of credibility of a co-accused who was offered a lesser sentence for cooperation.

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

Case Digests

• Plea Bargains