Criminal Law Notebook

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]

  1. ↑ R v Anthony-Cook, 2016 SCC 43 (CanLII), per Moldaver J at para 32

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".[1]

The use of the "less stringent" standards of the "fitness test" or "demonstrably unfit" test are now defunct.[2] This further eliminates the use of a blended test combining the unfitness and public interest tests.[3]

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.[4]

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.[5]

A joint submission often indicates a lower range of sentence.[6] 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.[7]

Sentences arising from a joint recommendation "have little or no precedential value."[8]

A "low end" joint recommendation can be based upon the "potential frailties of the Crown's case in the event of trial".[9]

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.[10]
  2. The public interest test is applied anytime the judge is considering to "jump" or "undercut" a joint recommendation.[11]
  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.[12]

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".[13]

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.[14]

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. [15]

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.[16]

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. [17] The judge may also want to provide counsel with an opportunity to apply to withdraw the guilty plea.[18]

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.[19]

  1. ↑ R v Anthony-Cook, 2016 SCC 43 (CanLII), per Moldaver J, at para 32
  2. ↑ See Anthony-Cook, supra
  3. ↑ See Anthony-Cook, supra
    R v Flanagan, 2012 SKCA 45 (CanLII), 393 Sask.R. 126, per Richards JA, at para 12 citing both unfitness and public interests test
  4. ↑ R v Keeping, 2013 CanLII 64708 (NL PC), per Porter J
  5. ↑ e.g. R v Parsons, 2012 CanLII 81320 (NL SCTD), per Goulding J - length of CSO and ancillary orders in dispute alone
  6. ↑ R v Kane 2012 NLCA 53 (CanLII), per Welsh JA
  7. ↑ R v Oake 2010 NLCA 19 (CanLII), per Rowe JA, at para 64
  8. ↑ R v Johnston, 2011 NLCA 56 (CanLII), per White JA
    R v Johnson, 2010 ABQB 546 (CanLII), per Sullivan J
    R v Benlolo 2006 CanLII 19284 (ON CA), (2006), 81 O.R. (3d) 440 (C.A.), per Feldman JA
  9. ↑ R v Bungay-Lloyd, 2016 NSSC 110 (CanLII), per Chipman J at para 18
  10. ↑ Anthony-Cook, supra at para 51
  11. ↑ Anthony-Cook, supra at para 52
  12. ↑ Anthony-Cook, supra at para 53
  13. ↑ Anthony-Cook, supra at para 54
  14. ↑ Anthony-Cook, supra at para 56
  15. ↑ Anthony-Cook, supra at para 52
  16. ↑ Anthony-Cook, supra, at para 51
  17. ↑ Anthony-Cook, supra, at para 58
  18. ↑ Anthony-Cook, supra at para 58 and 59
  19. ↑ Anthony-Cook, supra at para 60

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 JWIB, 2003 MBCA 92 (CanLII), per Freedman JA
    R v Pashe (S.J.) 1995 CanLII 6256 (MB C.A.), per Huband JA and Twaddle JA
  2. ↑ R v Smith, 2004 BCCA 657 (CanLII), per Newbury JA
    R v Gartner, 2010 BCCA 600 (CanLII), per Hall JA
    R v Wickstrom, 2011 BCSC 745 (CanLII), per Bernard J
    R v Cerasuolo, 2001 CanLII 24172 (ON CA), per Finlayson JA
    R v DeSousa, 2012 ONCA 254 (CanLII), per Doherty JA
  3. ↑ R v GWC, 2000 ABCA 333 (CanLII), per Berger JA, at para 17
  4. ↑ R v Wolonciej, 2011 MBCA 91 (CanLII), per Monnin and Steel JJA (3:0), at para 10
  5. ↑ R v Bambrick, 2011 NLCA 79 (CanLII), per Welsh JA, at para 14

"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.[1]

  1. ↑ R v Dunkers, 2018 BCCA 363 (CanLII), per MacKenzie JA, at paras 35 to 44

When Not Followed

If a judge has reservations to adopt a joint recommendation 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), per Berger JA, at para 26
  2. ↑ R v Hood, 2011 ABCA 169 (CanLII), per Martin JA, at para 14
    R v Abel, 2011 NWTCA 4 (CanLII), per curiam, at para 23
    R v Burback, 2012 ABCA 30 (CanLII), per Conrad J
  3. ↑ R v Beal, 2011 ABCA 35 (CanLII), per curiam
  4. ↑ R v Wickstrom, 2011 BCSC 745 (CanLII), per Bernard J
  5. ↑ R v Gibson, 2015 ABCA 41 (CanLII), per curiam, 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 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.[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), per Caldwell JA
  2. ↑ R v Jamieson, 2011 NSCA 122 (CanLII), per Saunders JA

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.), per Hill J
    R v Chen, 2009 ONCJ 453 (CanLII), per Fairgrieve J
    see also: R v Tallon, 2003 CanLII 27268 (ON C.A.), per Rosenberg JA

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), per Goodfellow J, at paras 1 to 9
  2. ↑ Bremner, ibid., at para 6
  3. ↑ Bremner at para 8
    R v Howell, 1995 CanLII 4282 (NS CA), (1996), 103 CCC (3d) 302, per Chipman JA at para 100
    See R v Pabani, 1994 CanLII 8723 (ON CA), (1994), 29 C.R. (4th) 364, per Finlayson JA
    R v White (1982), 39 Nfld. and P.E.I.R. 196 (Nfld. C.A.) (*no CanLII links)

Case Digests

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