A Commentary on Plea Bargaining: The Double-Edged Sword of the Canadian Criminal Justice System

“It is an accepted and entirely desirable practice for Crown and defence counsel to agree to a joint submission in exchange for a plea of guilty. Agreements of this nature are commonplace and vitally important to the well‑being of our criminal justice system, as well as the justice system at large.”[1]

In the ruling of R v Anthony excerpted above, the Supreme Court of Canada acknowledged the integral nature of the plea bargain to the Canadian criminal justice system.[if !supportFootnotes][2][endif] Unlike traditional court processes with a transparent set of rules and regulations overseen by a justice and the leering eye of the public, plea bargaining often takes place behind the scenes in back offices where the accused pleas guilty to an offence of which they are charged.[if !supportFootnotes][3][endif] Although plea bargains are commonly employed for positive reasons such as lowering the number of cases that go to trial, helping victims feel vindicated when the accused is found guilty (whereas in trial they might not have been), and giving the accused lesser or reduced sentences in exchange for an admission of guilt,[if !supportFootnotes][4][endif] there is also a darker and more elusive side of plea bargaining that is less explored.

When you plug ‘plea bargaining issues’ into Google, you’ll probably find articles referring to them as ‘con-troversies’ or ‘deals with the devil’. Whilst the inherent issues with plea bargaining have been recognized by various institutions including the Canadian Sentencing Commission who stated in a 1987 report that plea bargaining is a process in need of greater visibility and public accountability,[if !supportFootnotes][5][endif] very little has since been done to improve the state of plea bargaining in Canada. To me, the best description of plea bargaining is that it’s a double edged sword; both a benefit and a detriment to victims and the accused alike. Although the benefits have already been accounted for, the darker side of plea bargaining is concerning because plea bargains occasionally result in gross miscarriages of justice or wrongful convictions.

One such gross miscarriage of justice occurred in the Alberta case of R v Nixon.[if !supportFootnotes][6][endif] To describe the case briefly, the accused, an inebriated motorhome driver, drove through an intersection where she struck another vehicle, killed the couple inside said vehicle and injured their young son.[if !supportFootnotes][7][endif] Shockingly enough, the accused was able to plea guilty to the charge of careless driving and was handed a mere fine of $1,800 with no prison sentence; essentially the Crown chose to proceed summarily for a clearly indictable offence.[if !supportFootnotes][8][endif] Had this case gone to trial, I strongly feel that Nixon would’ve at least been convicted on account under s 253(1) operation of a vehicle while impaired,[if !supportFootnotes][9][endif] and/or s 249(3) dangerous driving causing bodily harm,[if !supportFootnotes][10][endif] both which carry significant prison terms. To me, Nixon’s sentence not only strikes me as unjust, but just plain wrong. I cannot help but put myself into the shoes of the victim’s family and friends, and contemplate how they must have felt when the inebriated driver who killed three of their loved ones quite literally got away with murder. Although the Supreme Court of Canada later repudiated Nixon's plea agreement,[if !supportFootnotes][11][endif] Nixon is a perfect illustration of the devastating reality that plea bargains aren’t as rosy nor as just as we are led to believe.

In other cases, plea bargains have resulted in the wrongful conviction of innocents. Although there’s no single reason why an innocent person pleads guilty, there are a multitude of influencing factors ranging from fear of a lengthier sentence if the case goes to trial to ignorance of the criminal justice system. One famous Canadian case is that of R v Brant. In the case, Richard Brant pled guilty to the charge of aggravated assault in the death of his nine-week old infant Dustin- who was later found to have died from complications from an upper respiratory tract infection.[if !supportFootnotes][12][endif] By accepting the plea bargain of aggravated assault, Brant was sentenced to six months in prison.[if !supportFootnotes][13][endif] When asked why he accepted the plea deal despite being innocent, he stated that he believed he had to in order to evade more serious charges such as manslaughter.[if !supportFootnotes][14][endif] Ultimately, what is clear from the Brant case is that plea bargains can occasionally be a counter-productive way to achieve justice.

In the United States, the alarming miscarriage of justice resulting from plea bargaining is also apparent. Highlighting the fate of several innocents who accepted plea deals, the PBS documentary The Plea spotlights the devastating effects of plea bargaining on innocents.[if !supportFootnotes][15][endif] Of all the cases shown in the documentary, none is as compelling as that of Charlie Gampero, a self-proclaimed “innocent”.[if !supportFootnotes][16][endif] Accused of the murder of a 33 year old man, Gampero was frightened into taking a plea agreement by the intimidating scare tactics used by the judge presiding over his case.[if !supportFootnotes][17][endif] In the interview, Gampero says that the judge threatened him with life in prison if he did not accept the plea; something which effectively pigeonholed him into taking the deal.[if !supportFootnotes][18][endif] Regardless, this example is a far cry from what is occurring here in Canada. In Canada, judges aren’t involved in the negotiations of plea bargains; instead, they are negotiated between Crown and defence counsel and the trial judge still has the option to accept or decline the plea bargain.[if !supportFootnotes][19][endif]

Despite its benefits, the obvious issues with plea bargaining are quite worrisome, something which makes me believe that there needs to be more clarity and consistency in the way plea bargains are negotiated. Fortunately, Manitoba’s Victims’ Bill of Rights has allowed for some clarity to be added to the process of plea bargains for victims and families of victims. Under s 12(i) of the Bill of Rights, victims are afforded the right to obtain information on the process of any plea negotiations in their case and the resolution of the charge.[if !supportFootnotes][20][endif] Nonetheless, in a 2017 study, it was found that despite proper care taken by judges and lawyers in guiding Aboriginal accused through the criminal justice system, some who have experienced the criminal justice system first hand feel that “With all the cuts to legal services, clients are more and more directed to enter a guilty plea rather than go to trial, even if the lawyer and client don’t have the disclosure in its entirety.”[if !supportFootnotes][21][endif]

Fortunately, the recently enacted Bill C-75 may help with some injustices caused by plea bargaining. While the bill purports to ensure that the facts of the case align with the charges laid so cases like R v Nixon aren’t the norm, I agree with Métis lawyer Amanda Carling’s opinion in the Globe and Mail that Bill C-75 isn’t enough to help prevent certain injustices associated with guilty pleas (i.e. innocents pleading guilty).[if !supportFootnotes][22][endif] Although it’s unclear what shape plea bargains will take in the future, what is clear is that there needs to be changes to the plea bargaining process as it currently stands so that it is accountable to both victims of crime and those accused.

[if !supportFootnotes]

Footnotes

[if !supportFootnotes][1][endif] R v Anthony-Cook, 2016 SCC 43, at para 25.

[if !supportFootnotes][2][endif] Ibid.

[if !supportFootnotes][3][endif] Curt T. Griffiths, Canadian Criminal Justice A Primer (Toronto: Nelson Education, 2015) at 183-185.

[if !supportFootnotes][4][endif] Ibid at 185.

[if !supportFootnotes][5][endif] Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (Ontario: Minister of Supply and Services Canada, 1987) at 414.

[if !supportFootnotes][6][endif] R v Nixon, 2008 ABPC 20.

[if !supportFootnotes][7][endif] Ibid at para 2.

[if !supportFootnotes][8][endif] Ibid at para 4.

[if !supportFootnotes][9][endif] Criminal Code, RSC 1985, c C-46, s 253(1).

[if !supportFootnotes][10][endif] Ibid, s 249(3).

[if !supportFootnotes][11][endif] R v Nixon, 2011 SCC 34.

[if !supportFootnotes][12][endif] R v Brant, 2011 ONCA 362, at paras 1-2.

[if !supportFootnotes][13][endif] Sarah Harland-Logan, “Richard Brant”, online: Innocence Canada <innocencecanada.com/exonerations/richard-brant/> [perma.cc/XX8R-798M].

[if !supportFootnotes][14][endif] Ibid.

[if !supportFootnotes][15][endif] O Bikel (director), “The Plea” (17 Jun 2004), online: PBS <pbs.org/video/frontline-the-plea/> [perma.cc/7L65-VJVZ].

[if !supportFootnotes][16][endif] Ibid.

[if !supportFootnotes][17][endif] Ibid.

[if !supportFootnotes][18][endif] Ibid.

[if !supportFootnotes][19][endif] Supra note 3 at 184.

[if !supportFootnotes][20][endif] The Victims’ Bill of Rights, SM 2017, c 26, CCSM c V55, s 12(i).

[if !supportFootnotes][21][endif] Statistics Canada, Guilty pleas among Indigenous people in Canada, by Angela Bressan and Kyle Coady, Catalogue No J4-62/2018E-PDF (Ottawa: Statistics Canada, 2017) at 11.

Amanda Carling, “Pleading guilty when innocent: A truth for too many Indigenous people”, The Globe and Mail (23 May 2018), online: <theglobeandmail.com> [perma.cc/XEU8-YCXG].[endif][22][if !supportFootnotes]