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.

Internationally

The EU has considered the lawfulness of the use of plea bargaining and found it complied with European Human Rights law.[1]

  1. ↑ Babar Ahmad v United Kingdom (2010) 51 EHRR

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. does the sentence bring the administration of justice into disrepute?
  2. is the sentence contrary to the public interest?

The sentencing judge should assume all provisions and sentencing options were considered and rejected by the parties unless clearly in error such as a failure to request a mandatory order.[2]

  1. ↑ R v Anthony-Cook, 2016 SCC 43 (CanLII), per Moldaver J, at para 32 ("Under the public interest test, a trial 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. But, what does this threshold mean? Two decisions from the Newfoundland and Labrador Court of Appeal are helpful in this regard.")
  2. ↑ Anthony-Cook, ibid. at para 51
    R v Espinoza-Ortega, 2019 ONCA 545 (CanLII), at para 30

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]

Purpose of Test

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.[2]

Applies Only to Penalty

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.[3]

The test should be applied whenever the judge is considering jumping or undercutting a proposed sentence.[4]

Lower End Range

A joint submission often indicates a lower range of sentence.[5] 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.[6]

A "low end" joint recommendation can be based upon the "potential frailties of the Crown's case in the event of trial".[7]

Precedential Value of a Joint Recommendation

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

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.[9]
  2. The public interest test is applied anytime the judge is considering to "jump" or "undercut" a joint recommendation.[10]
  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.[11]
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".[12]

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.[13]

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. [14]

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.[15]

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

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.[18]

No Application of Fitness Text

The use of the "less stringent" standards of the "fitness test" or "demonstrably unfit" test are now defunct.[19] This further eliminates the use of a blended test combining the unfitness and public interest tests.[20]

  1. ↑ R v Anthony-Cook, 2016 SCC 43 (CanLII), per Moldaver J, at para 32 ("Under the public interest test, a trial 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. But, what does this threshold mean? Two decisions from the Newfoundland and Labrador Court of Appeal are helpful in this regard.")
  2. ↑ R v Keeping, 2013 CanLII 64708 (NLPC), per Porter J
  3. ↑ e.g. R v Parsons, 2012 CanLII 81320 (NLSCTD), per Goulding J - length of CSO and ancillary orders in dispute alone
  4. ↑ Anthony-Cook, supra at para 52
  5. ↑ R v Kane, 2012 NLCA 53 (CanLII), per Welsh JA
  6. ↑ R v Oake, 2010 NLCA 19 (CanLII), per Rowe JA, at para 64
  7. ↑ R v Bungay-Lloyd, 2016 NSSC 110 (CanLII), per Chipman J, at para 18
  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), 81 OR (3d) 440 (CA), per Feldman JA
  9. ↑ Anthony-Cook, supra, at para 51 ("First, trial judges should approach the joint submission on an “as-is” basis. That is to say, the public interest test applies whether the judge is considering varying the proposed sentence or adding something to it that the parties have not mentioned, for example, a probation order. If the parties have not asked for a particular order, the trial judge should assume that it was considered and excluded from the joint submission. However, if counsel have neglected to include a mandatory order, the judge should not hesitate to inform counsel. The need for certainty in joint submissions cannot justify failing to impose a mandatory order.")
  10. ↑ Anthony-Cook, supra, at para 52 ("Second, trial judges should apply the public interest test when they are considering “jumping” or “undercutting” a joint submission (DeSousa, per Doherty J.A.). That is not to say that the analysis will be the same in either case. On the contrary, from the accused’s perspective, “undercutting” does not engage concerns about fair trial rights or undermine confidence in the certainty of plea negotiations. In addition, in assessing whether the severity of a joint submission would offend the public interest, trial judges should be mindful of the power imbalance that may exist between the Crown and defence, particularly where the accused is self-represented or in custody at the time of sentencing. These factors may temper the public interest in certainty and justify “undercutting” in limited circumstances. At the same time, where the trial judge is considering “undercutting”, he or she should bear in mind that the community’s confidence in the administration of justice may suffer if an accused enjoys the benefits of a joint submission without having to serve the agreed-upon sentence ...")
  11. ↑ Anthony-Cook, supra, at para 53 ("Third, when faced with a contentious joint submission, trial judges will undoubtedly want to know about the circumstances leading to the joint submission — and in particular, any benefits obtained by the Crown or concessions made by the accused. The greater the benefits obtained by the Crown, and the more concessions made by the accused, the more likely it is that the trial judge should accept the joint submission, even though it may appear to be unduly lenient. For example, if the joint submission is the product of an agreement by the accused to assist the Crown or police, or an evidentiary weakness in the Crown’s case, a very lenient sentence might not be contrary to the public interest. On the other hand, if the joint submission resulted only from the accused’s realization that conviction was inevitable, the same sentence might cause the public to lose confidence in the criminal justice system.")
  12. ↑ Anthony-Cook, supra, at para 54 ("Counsel should, of course, provide the court with a full account of the circumstances of the offender, the offence, and the joint submission without waiting for a specific request from the trial judge. As trial judges are obliged to depart only rarely from joint submissions, there is a “corollary obligation upon counsel” to ensure that they “amply justify their position on the facts of the case as presented in open court” (Martin Committee Report, at p. 329). Sentencing — including sentencing based on a joint submission — cannot be done in the dark. The Crown and the defence must “provide the trial judge not only with the proposed sentence, but with a full description of the facts relevant to the offender and the offence”, in order to give the judge “a proper basis upon which to determine whether [the joint submission] should be accepted”")
  13. ↑ Anthony-Cook, supra, at para 56 ("There may, of course, be cases where it is not possible to put the main considerations underlying a joint submission on the public record because of safety or privacy concerns, or the risk of jeopardizing ongoing criminal investigations (see Martin Committee Report, at p. 317). In such cases, counsel must find alternative means of communicating these considerations to the trial judge in order to ensure that the judge is apprised of the relevant considerations and that a proper record is created for appeal purposes.")
  14. ↑ Anthony-Cook, supra, at para 52 ("Second, trial judges should apply the public interest test when they are considering “jumping” or “undercutting” a joint submission (DeSousa, per Doherty J.A.). That is not to say that the analysis will be the same in either case. On the contrary, from the accused’s perspective, “undercutting” does not engage concerns about fair trial rights or undermine confidence in the certainty of plea negotiations. In addition, in assessing whether the severity of a joint submission would offend the public interest, trial judges should be mindful of the power imbalance that may exist between the Crown and defence, particularly where the accused is self-represented or in custody at the time of sentencing. These factors may temper the public interest in certainty and justify “undercutting” in limited circumstances. At the same time, where the trial judge is considering “undercutting”, he or she should bear in mind that the community’s confidence in the administration of justice may suffer if an accused enjoys the benefits of a joint submission without having to serve the agreed-upon sentence")
  15. ↑ Anthony-Cook, supra, at para 51 (" First, trial judges should approach the joint submission on an “as-is” basis. That is to say, the public interest test applies whether the judge is considering varying the proposed sentence or adding something to it that the parties have not mentioned, for example, a probation order. If the parties have not asked for a particular order, the trial judge should assume that it was considered and excluded from the joint submission. However, if counsel have neglected to include a mandatory order, the judge should not hesitate to inform counsel. The need for certainty in joint submissions cannot justify failing to impose a mandatory order.")
  16. ↑ Anthony-Cook, supra, at para 58 ("Fourth, if the trial judge is not satisfied with the sentence proposed by counsel, “fundamental fairness dictates that an opportunity be afforded to counsel to make further submissions in an attempt to address the . . . judge’s concerns before the sentence is imposed” (G.W.C., at para. 26). The judge should notify counsel that he or she has concerns, and invite further submissions on those concerns, including the possibility of allowing the accused to withdraw his or her guilty plea, as the trial judge did in this case.")
  17. ↑ Anthony-Cook, supra, at paras 58 and 59
  18. ↑ Anthony-Cook, supra, at para 60 ("Finally, trial judges who remain unsatisfied by counsel’s submissions should provide clear and cogent reasons for departing from the joint submission. These reasons will help explain to the parties why the proposed sentence was unacceptable, and may assist them in the resolution of future cases. Reasons will also facilitate appellate review.")
  19. ↑ See Anthony-Cook, supra
  20. ↑ 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

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, they should allow counsel an opportunity to respond.[1] Anytime 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] A failure to provide notice is inherently unfair.[3]

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.[4]

A judge adding probation on a joint recommendation without notice can be set aside. [5]

A judge need not accept a joint recommendation that is "facially disproportionate" to the offence.[6]

  1. ↑ R v GWC, 2000 ABCA 333 (CanLII), per Berger JA, at para 26 ("In addition to the foregoing, the procedure followed by the sentencing judge in rejecting the joint submission in this case is a matter of concern. Once a sentencing judge concludes that he might not accede to a joint submission, fundamental fairness dictates that an opportunity be afforded to counsel to make further submissions in an attempt to address the sentencing judge’s concerns before the sentence is imposed. In this case, lengthy submissions were made by both counsel in support of a probationary term which evoked no expressions of concern by the sentencing judge. He then retired to consider the disposition of the case. It was only upon his return to the courtroom, and in the course of giving reasons for rejecting the joint submission, that counsel had any indication of concern on his part. As a result, they were afforded no opportunity to address that concern. Indeed, had the sentencing judge made his concern known to counsel in a timely fashion, the foundation upon which the joint submission rested might well have been laid. I do not suggest that any particular procedure is de rigueur; I say only that the principle of audi alteram partem should be followed.")
  2. ↑ R v Hood, 2011 ABCA 169 (CanLII), per Martin JA, at para 14 ("Before closing, we return to the sentencing judge’s rejection of the range of sentence proposed by counsel: 90 intermittent days by defence counsel, and nine months imprisonment by Crown counsel. In particular, we note the sentencing judge signalled to counsel that he was not inclined to impose a sentence in that range and then invited further submissions, including submissions on whether the offence attracted the starting point sentence of four years imprisonment...")
    R v Abel, 2011 NWTCA 4 (CanLII), 527 WAC 136, per curiam, at para 23
    R v Burback, 2012 ABCA 30 (CanLII), per Conrad J
  3. ↑ R v Kritaqliluk, 2021 NUCA 4 (CanLII)(complete citation pending), at para 16
    R v Parr, 2020 NUCA 2 (CanLII), at para 46
    R v Vegso, 2012 NWTSC 77 (CanLII), 40 MVR (6th) 295(complete citation pending), at para 19
    R v Burback, 2012 ABCA 30 (CanLII), 522 AR 352(complete citation pending), at paras 12 to 15
    R v Kuliktana, 2020 NUCA 7 (CanLII)(complete citation pending), at para 86
    R v Kippomee, 2019 NUCA 3 (CanLII)(complete citation pending), at para 30
  4. ↑ R v Beal, 2011 ABCA 35 (CanLII), per curiam
  5. ↑ R v Wickstrom, 2011 BCSC 745 (CanLII), per Bernard J
  6. ↑ 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 by Crown Counsel

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.

A Crown may agree to a joint sentence and then, based on new information, determine that the agreed sentence is contrary to the public interest under the Anthony-Cook test. In such a case, a request to withdraw the guilty plea should be allowed.[2]

  1. ↑ R v M (R.N.-Z.), 2006 CanLII 32999 (ON SC), 213 CCC (3d) 107, per Hill J
    R v Chen, 2009 ONCJ 453 (CanLII), 73 CR (6th) 181, per Fairgrieve J
    see also: R v Tallon, 2003 CanLII 27268 (ONCA), 181 CCC (3d) 261, per Rosenberg JA
  2. ↑ R v Espinoza-Ortega, 2019 ONCA 545 (CanLII), per Feldman JA, at para 46

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, supra, at para 8
    R v Howell, 1995 CanLII 4282 (NSCA), per Chipman JA, at para 100
    See R v Pabani, 1994 CanLII 8723 (ON CA), 29 CR (4th) 364, per Finlayson JA
    R v White (1982), 39 Nfld. and PEIR 196 (Nfld. C.A.) (*no CanLII links)

Case Digests

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