- Robson Crim
Plea-se Bargain Carefully: Balancing the Expediency of Plea Bargaining with the Rights of an Accused
Written by Brynn Taylor
In the Canadian legal system, there is a constant tension between crime control and due process, a perpetual difficulty in attempting to balance efficiency and attention to individual rights. It is well-known that the journey of a case through the courts can be a long and expensive one. One method that proposes to expedite criminal law cases and confer benefits to both the prosecution and the accused is that of plea bargaining.[i] Barron’s Canadian law dictionary defines plea bargaining as “an informal practice where the accused uses his or her right both to plead not guilty and to demand a full trial in order to bargain for a benefit that is usually related to a charge or the sentence”.[ii] This is not a legislated legal practice but one that has developed by common law. Plea bargains may be made to the judge, prosecutor, or both – often a deal will be negotiated between the defence and the Crown and presented to the judge as a joint submission concerning sentencing.[iii] Barron’s also notes that common requests by the accused include some charges being withdrawn, a reduction in the current charge(s), or a guarantee that other proceedings will not be instituted. Benefits to the prosecution include saving time and money that would otherwise be required if the case went to trial, and in some cases, securing a conviction where a trial may not have produced that result, i.e., weak evidence.[iv]
However, care must be taken to preserve the rights of the accused during the plea process, and counsel must remember and respect their role as an expert advisor on the law to their client. To be valid, a guilty plea must be “voluntary and unequivocal, and based on sufficient information concerning the nature of the charges against the accused and the consequences for the accused of a guilty plea”[v]; if it fails to satisfy these and certain elements to be explored later, the accused may have grounds to withdraw the plea.[vi] This blog will explore how failure to inform the accused of the consequences of submitting a guilty plea led to the plea being withdrawn in R. v. Breitkreutz and discuss the impact of this and similar cases.
Breitkreutz, employed at Base Finance Ltd., was charged with defrauding investors for over five thousand dollars. His counsel applied to have evidence obtained by police from the Alberta Securities Commission (ASC) excluded prior to the original trial, based on the position that the ASC’s use of its statutory investigation powers was used improperly to help further a criminal investigation – this type of application is known as a Jarvis application. At trial, Breitkreutz agreed to plead guilty, and admitted facts pursuant to the plea agreement that afforded him a reduced sentence.[vii]
Current trial – Alberta Court of Queen’s Bench:
The Crown applied to have Breitkreutz’s guilty plea and the facts he admitted to as part of his plea admitted into evidence. Breitkreutz and his counsel shared that they had expected to win the Jarvis application. They then decided to appeal the decision made on it and submit a guilty plea to resolve the pending trial.[viii] However, his counsel did not explain to Breitkreutz that in pleading guilty, his right to appeal the pre-trial Jarvis application was forfeit; therefore, his decision to submit a guilty plea was based on incorrect legal advice.[ix]
The Court referred to R. v. Thibodeau, where the guilty plea was withdrawn because it was made hastily and without being informed by legal counsel[x], and likened the two cases. R. v. Wong set out principles of establishing subjective prejudice on the part of an accused who seeks to withdraw a guilty plea on the basis that they were not sufficiently legally informed of relevant consequences stemming from submission of said plea.[xi] These principles are based on how the choice to submit a guilty plea is not based on objective judgment or that of a reasonable person but by subjective judgment of the accused. Therefore, the accused must establish a reasonable possibility that they would have acted differently had the consequences been known to them, whether that would have meant pleading not guilty (opting for a trial) or pleading guilty but with different conditions. Objective circumstances and judicial discretion may be used to measure against what the accused claims their fully informed choice would have subjectively been.[xii] Unlike Wong, who did not demonstrate that he would subjectively have acted differently[xiii] (and whose appeal was denied), Breitkreutz would not have entered a guilty plea had he known it would forfeit his right to appeal his Jarvis application as he was acting under incorrect legal advice.[xiv]
In allowing a withdrawal of Breitkreutz’s guilty plea, it was determined that not only was the plea itself legally inadmissible, but the admitted facts were as well. The Court stated that to allow the latter to be admitted would be “prejudicial as its use would call into question the fairness of the trial” and the presumption of innocence would be undermined. Therefore, the probative value of the admitted facts was outweighed by the prejudicial value and must be excluded.
In sum, due to failure on the part of his counsel to properly inform Breitkreutz of his legal rights, which the Crown agreed had not happened, the Crown’s application was dismissed, causing the guilty plea to be ruled inadmissible, as well as the admitted facts; lest the admission of the latter undermine the presumption of innocence.[xv]
Plea bargaining is a mechanism that, when utilized correctly, saves both the accused and the courts the time and money involved in going to trial.[xvi] Submitting a plea of guilty also indicates remorse and is reflected on as an important mitigating factor when considering sentencing.[xvii]
When a guilty plea is invalidly entered – whether on grounds of voluntariness, equivocalness, or informed nature of the charges and consequences of the action – there is an increased burden on the courts, the prosecution, and the defence. In Canada, guilty pleas secure a notable majority of criminal convictions, and so have become an important part of the criminal justice process and system.[xviii] Therefore, it is of paramount importance to ensure that each guilty plea is indeed voluntary, unequivocal, and informed.
Responsibility to one’s client is a codified duty in the legal profession, and there is a specific section in the Manitoba Law Society’s Code of Professional Conduct covering agreement on guilty plea, stating that the lawyer must impart to the client what possible implications and consequences may come of a guilty plea. Commentary in the same section nicely summarizes that “the public interest in the proper administration of justice should not be sacrificed in the interest of expediency”.[xix]
The practice of plea bargaining is one that is here to stay. While it has made a place for itself providing benefits to both sides as well as the courts and the public at large, and it is indeed a shorter route to sentencing than a full trial, care must be taken to ensure that additional shortcuts are not made during the process. As with any tool, its success is highly dependent upon the care and skill of those individuals who wield it. For what may seem to save time in the moment, can often end up costing more time and resources in the long run to rectify. The rights of the accused, specifically regarding informed legal counsel and their subsequent autonomy to do with that counsel what they will, must be preserved; not glossed over or rushed through in the name of efficiency. Indeed, the significance of the guilty plea is that it is one of the rare instances in the criminal process which must be personally taken by the accused, with the defence counsel being “ethically bound to ensure that the ultimate choice is that of the accused”.[xx] Lawyers must take their role as counsel seriously and thoroughly advise and confirm understanding before their client chooses to plead guilty.
Furthermore, each instance in which a guilty plea is invalidly entered has the potential to cumulatively chip away not only at the collective confidence required for successful plea bargaining, but at the wider trust in the public’s perception of the fairness and justice of the legal system.
[i] Kent Roach, Criminal Law, 8th ed. (Toronto, ON: Irwin Law, Inc., 2022) at 539. [ii] Barron’s Canadian Law Dictionary, 6th ed., sub verbo “plea bargaining” [iii] Roach, supra note 1 at 539. [iv] Supra note 2. [v] Raymond v R,  Q.J. No. 3984 at para 76. [vi] R v Wong,  1 S.C.R. 696 at para 44. [vii] R v Breitkreutz, 2022 ABQB 403 [viii]Ibid [ix] Ibid at para 3. [x] R v Thibodeau,  S.C.R. 646. [xi] Wong, supra note 6. [xii] Ibid [xiii]Ibid at para 37. [xiv] Breitkreutz, supra note 7 at para 35. [xv] Ibid at para 32. [xvi] Roach, supra note 1. [xvii]Ibid [xviii]Wong, supra note 6 at para 61. [xix] The Law Society of Manitoba, Code of Professional Conduct, 2022 ed. (Winnipeg, MB: Law Society of Manitoba, 2022) at p 95. [xx] Wong, supra note 6 at para 2.