Plea Bargaining

Milica Potrebic Piccinato

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Notes and References

• [1]Ontario Ministry of the Attorney General, Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (generally referred to as the "Martin Report", since the committee in question was chaired by Mr. G. Arthur Martin), 1993, page 275.

• [2]Law Reform Commission of Canada, Criminal Procedure : Control of the Process (Working Paper No. 15), Ottawa, Information Canada, 1975, page 45.

• [3]An "included" offence is part of the main offence. The main offence must contain the essential elements of the offence said to be included (see Regina v. Beyo, Decision of the Ontario Court of Appeal, [2000] Canadian Criminal Cases, Third Series, volume 144, pages 15-35, at page 15, paragraph 29 (leave to Supreme Court of Canada dismissed). The included offence must be a "lesser" offence than the main offence. In other words, a lesser and included offence is part of an offence that is charged, and it must necessarily include some elements of the main offence but be lacking in some of the essentials without which the main offence would be incomplete (see Fergusson v. The Queen, Decision of the Supreme Court of Canada, [1961] Canadian Criminal Cases, volume 132, pages 112-116, at page 114.)

  There are four ways in which an offence may be included in another offence (see Regina v. Beyo, Decision of the Ontario Court of Appeal, [2000] Canadian Criminal Cases, Third Series, volume 144, pages 15-35) :

  1. A statute may expressly prescribe that a certain offence is an included offence ; for example, section 662(3) of the Criminal Code includes manslaughter or infanticide within the offence of murder.

  2. The offence described in the enactment creating it includes the commission of another offence ; for example, assault is a lesser and included offence within the offence of assault causing bodily harm created by section 267 of the Criminal Code.

  3. The description or wording of the offence charged in the charging document may include the commission of another offence ; for example, a count charging attempted murder may particularise the offence of wounding.

  4. Section 660 of the Criminal Code provides that the offence of attempt to commit the offence charged is an included offence of the main offence charged.

  Finally, section 606(4) of the Criminal Code provides that an accused may plead not guilty to the offence charged but guilty to any other offence arising out of the same transaction, whether or not it is an included offence, with the consent of the prosecutor. For example, a possible resolution discussion may involve an accused agreeing to plead guilty to the lesser and included offence of possession of a controlled substance but not guilty to the offence charged of possession of a controlled substance for the purposes of trafficking, which would carry a higher sanction (see section 5(2) of the Controlled Drugs and Substances Act, Statutes of Canada, 1996, volume 1, chapter 19).

• [4]Often an accused may be charged with a number of related, similar or identical counts where, for example, the criminal conduct transpires over a lengthy period of time, or the impugned conduct has many criminal facets. In cases involving illegal drug sales, a suspect may be charged with five counts of trafficking of a controlled substance where the investigation discloses that he sold illegal drugs over the course of a number of days to different purchasers in different locations. A resolution agreement may involve the accused pleading guilty to only one count of trafficking and the prosecutor withdrawing the remaining four counts. In this case, the accused would admit to trafficking over the course of five days but only plead guilty to one "all-inclusive" count of trafficking that would include the criminal conduct that transpired over five days. Another example may involve an accused who is charged with a number of offences, such as sexual assault, forcible confinement and sexual exploitation, that arise out of one incident, pleading guilty to the one "all-inclusive" count of sexual assault. In this case, the prosecutor may withdraw the counts of forcible confinement and sexual exploitation, if the accused admits to those acts through the plea of guilty to the one count of sexual assault.

  There is also the case of an accused engaging in conduct that constitutes a "continuing offence". A continuing or continuous offence is a concept well known in Canadian criminal law and is often used to describe two different kinds of crime. There is the crime that is constituted by conduct which goes on from day to day and constitutes a separate and distinct offence each day the conduct continues. There is, on the other hand, the kind of conduct, generally of a passive character, that consists in the failure to perform a duty imposed by law. Such passive conduct may constitute a crime when first indulged in, but if the obligation is continuous the breach — though constituting one crime only — continues day by day to be a crime until the obligation is performed (see Regina v. Rutherford [1990] Ontario Judgments No. 136 (Ontario Court of Appeal), Quick Law citation). A resolution agreement may include the prosecutor agreeing to prosecute the accused for one count that encompasses a number of occurrences or acts taking place over a period of time as one continuing offence or transaction. For example, acts of theft occurring over a period of time involving the same victim may be treated as one continuous offence and could be covered in one single count of theft. See Regina v. Barnes, Decision of the Nova Scotia Supreme Court (Appeal Division), [1975] Canadian Criminal Cases, Second Series, volume 26, pages 112-127.

• [5]The Ontario Court of Appeal in the decision of Regina v. Garcia and Silva, [1970] Canadian Criminal Cases, volume 3, pages 124-127 stated the following : "We agree that frequently it is a sensible and proper thing for a Judge to take into consideration other convictions and on occasions and under proper safeguards other charges laid against a convicted person. If other charges are taken into consideration, it seems to us those safeguards should at least include the conditions that they are charges with respect to which the accused will plead guilty or will otherwise be proved guilty and that the Crown commits itself not to proceed with those other charges in the event that they are taken into consideration in sentencing on the conviction before the Court."

• [6]In Canada there are two types of criminal offences. The less serious criminal offences are classified as summary conviction offences and are generally punishable by a maximum penalty of a fine of $2,000 or six months imprisonment, or both (see section 787 of the Criminal Code). The most serious criminal offences are classified as indictable offences and include offences such as murder and robbery. Some criminal offences may be classified as either summary conviction or indictable and are known as Hybrid or Dual Procedure Offences. Examples of these offences include the offences of theft, fraud and assault. The prosecutor is solely responsible for electing whether to proceed by summary conviction or by indictment when prosecuting a hybrid or dual procedure offence. Consequently, this is an extremely important issue raised during resolution discussions, as it has a serious impact on the potential criminal sanction.

• [7]Under section 11(b) of the Canadian Charter of Rights and Freedoms, Schedule B, Constitution Act, 1982, chapter 11 (cited hereafter as Canadian Charter of Rights and Freedoms) any person charged with an offence has the right to be tried within a reasonable time.

• [8]Pursuant to sections 478(3) and 479 of the Criminal Code, a criminal charge once instituted by the state can be transferred to another jurisdiction if the Attorney General consents to the transfer and the accused pleads guilty to the charge. This procedure does not apply to many serious offences mentioned in section 469, including murder, treason, piracy, bribery by a judicial officer and war crimes.

• [9]Pursuant to section 732 of the Criminal Code, an offender may serve a term of imprisonment of ninety days or less on an intermittent basis. This form of sentence is often imposed to permit the offender to continue employment and, for example, will permit the offender to live at home during the week and serve the sentence on weekends.

• [10]A conditional sentence is a penal sanction that is tantamount to a term of imprisonment ; however, the offender is allowed, by operation of law, to serve the term of imprisonment in the community. Pursuant to section 742.1 of the Criminal Code, where a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years and is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental principles of sentencing, the court may order that the offender serve the sentence in the community, subject to the offender complying with conditions of a conditional sentence order.

• [11]Section 655 of the Criminal Code provides that "where an accused is on trial for an indictable offence, he or his counsel may admit any fact alleged against him for the purpose of dispensing with proof thereof."

• [12]In Canada, the burden rests on the prosecutor to prove the voluntary nature of a statement made by an accused beyond a reasonable doubt before it will be admitted into evidence at trial.

• [13]For example, section 8 of the Charter of Rights and Freedoms states : "Everyone has the right to be secure against unreasonable search or seizure." The burden rests on the accused to establish on the balance of probabilities or through a preponderance of the evidence that the state violated this right. Part of this burden requires the accused to establish that he has a reasonable expectation of privacy in the subject matter of the search or seizure. (Edwards v. The Queen, Decision of the Supreme Court of Canada, [1996] Canadian Criminal Cases, Third Series, volume 104, pages 136-160. The prosecutor may agree to dispense with the accused's requirement to establish his reasonable expectation of privacy in a case where it is absolutely clear that the accused did have such an expectation when the state conducted a search or seizure, such as the search of the accused's dwelling house.

• [14]This definition is found in D.W. Perras, "Plea Negotiations", The Criminal Law Quarterly, volume 22, 1979-1980, pages 58-73, at pages 58-59, and was accepted as an apt definition in the Martin Report. It must be noted that there is no formal definition of the concept of plea bargaining in the Criminal Code (Revised Statutes of Canada, 1985, chapter C-46).

• [15]Law Reform Commission of Canada, Plea Discussions and Agreements (Working Paper 60), Ottawa, 1989, page 5.

• [16]"Should We Really "Ban" Plea Bargaining? : The Core Concerns of Plea Bargaining Critics", Emory Law Journal, volume 37, pages 753-783, at page 768.

• [17]Law Reform Commission of Canada, Plea Discussions and Agreements (Working Paper 60), Ottawa,1989, page 6.

• [18]Sections 606(1) and 607(1) of the Criminal Code states that an accused who is called on to plead may plead guilty or not guilty, or the special pleas of autrefois acquit, autrefois convict and pardon, and no others.

• [19]Section 10(b) of the Charter of Rights and Freedoms provides that : "Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right".

• [20]The Law Society of Upper Canada, Rules of Professional Conduct, Rule 4.01, "The Lawyer as Advocate", Commentary on Rule 4.01(1).
  Available at http://www.lsuc.on.ca/regulation/a/profconduct/rule4/

• [21]The Law Society of Upper Canada, Rules of Professional Conduct, Rule 4.01(9)(c) and (d) (available at http://www.lsuc.on.ca/regulation/a/profconduct/rule4/) state that the lawyer may enter into an agreement with the prosecutor about a guilty plea only where the client voluntarily is prepared to admit the necessary factual and mental elements of the offence charged ; and the client voluntarily instructs the lawyer to enter into an agreement as to a guilty plea.

• [22]"Should We Really "Ban" Plea Bargaining? : The Core Concerns of Plea Bargaining Critics", Emory Law Journal, volume 37, pages 753-783, at page 771.

• [23]Dianne L. Martin, "Mandatory Minimum Sentences : Law and Policy", Osgoode Hall Law Journal, volume 39, 2001, pages 513-527, at paragraphs 8 and 23.

• [24]In the Supreme Court of Canada's decision of Lavallee v. The Queen, Decision of the Supreme Court of Canada, [1990] Canadian Criminal Cases, Third Series, volume 55, pages 97-133, the accused shot her husband in the back of the head as he left the room. Evidence at trial established that the accused had been repeatedly physically abused by her husband and that he told the accused that he was going to kill her. The accused wife successfully raised the defence of self-defence and was acquitted. The Court held that expert testimony regarding the "battered-wife syndrome" was admissible and relevant and necessary in respect of the issues of the accused's mental state and elements of the defence of self-defence.

• [25]The Honourable Justice Lynn Ratushny, Self Defence Review : Final Report submitted to the Minister of Justice of Canada and to the Solicitor General of Canada, Ottawa, 11 July 1997.

• [26]More precisely : $58.91 billion (Canadian dollars)
  Department of Justice of Canada, Research and Statistics Division, JustStats (No.2002-01), October 2002.

• [27]Protection costs are estimated to be 13% of the total cost of crime or $7.49 billion (Canadian dollars). They include expenditures on security and insurance administration.

• [28]Victim costs are 67% of the total cost of crime or $39.44 billion. These costs include property that is stolen or damaged, emotional and physical impact on victims, lost output, health services, victim support services and drug-related costs.

• [29]More exactly : $11.97 billion.
  Department of Justice of Canada, Research and Statistics Division, JustStats (No.2002-01), October 2002.

• [30]The 91.3% figure includes all charges that are resolved by guilty pleas or withdrawn by the prosecutor. (See The Commission on Proceedings Involving Guy Paul Morin, Testimony of Peter Griffiths relating to Exhibit 292, Statistical Monitoring Report of Ontario Court, Provincial Division,12 December 1997, available on Quick Law in database "CRCM".) Of the 91.3% of cases, 75.5% were resolved before trial, while the other 15.8% remained unresolved until the day set for trial. (See The Investment Strategy Report, Ontario Ministry of the Attorney General, Third Quarter of 1998, referred to in the Report of the Criminal Justice Review Committee, February 1999, Chapter 6, Part 4, available on Quick Law in database "CRCM".)

• [31]Ontario Ministry of the Attorney General, Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions, 1993, pages 1-523, at page 277.

• [32]The Law Society of Upper Canada, Rules of Professional Conduct, Rule 4.01(9).
  Available at http://www.lsuc.on.ca/regulation/a/profconduct/rule4/

• [33]Re Skogman and The Queen, Decision of the Supreme Court of Canada, [1984] Canadian Criminal Cases, Third Series, volume 13, pages 161-185.

• [34]Regina v. Power, Decision of the Supreme Court of Canada, [1994] Canadian Criminal Cases, Third Series, volume 89, pages 1-39.

• [35]Canada, Department of Justice, Federal Prosecution Service Deskbook, "Proceedings at Trial and on Appeal", Chapter 20, pages V-20-1 to V-20-11, at page V-20-1.
  Available at http://canada.justice.gc.ca/eng/dept-min/pub/fpsdeskbook.pdf

• [36]Federal Prosecution Service Deskbook, "Proceedings at Trial and on Appeal", Chapter 20, pages V-20-1 to V-20-11, at page V-20-5.

• [37]Federal Prosecution Service Deskbook, "Proceedings at Trial and on Appeal", Chapter 20, pages V-20-1 to V-20-11, at page V-20-8.

• [38]"Should We Really "Ban" Plea Bargaining? : The Core Concerns of Plea Bargaining Critics", Emory Law Journal, volume 47, 1998, pages 753-783, at page 765.

• [39]The duty on the prosecutor is triggered by a request from the defence. There is, therefore, an obligation on defence counsel to request disclosure from the prosecution. See Stinchcombe v. The Queen, Decision of the Supreme Court of Canada, [1992] Canadian Criminal Cases, Third Series, volume 68, pages 1-18. In cases where the accused is not represented by counsel, the prosecutor is obligated to arrange to have the accused informed of the right to disclosure and that disclosure is available, and to determine how disclosure can best be provided to the accused. (See also Federal Prosecution Service Deskbook, "Proceedings at Trial and on Appeal", Chapter 18, pages V-18-1 to V-18-22, at pages V-18-15 to V-18-17).

• [40]Stinchcombe v. The Queen, Decision of the Supreme Court of Canada, [1992] Canadian Criminal Cases, Third Series, volume 68, pages 1-18.

• [41]Federal Prosecution Service Deskbook, "Proceedings at Trial and on Appeal", Chapter 18, pages V-18-1 to V-18-22, at page V-18-2.

• [42]Federal Prosecution Service Deskbook, "Proceedings at Trial and on Appeal", Chapter 20, pages V-20-1 to V-20-11, at page V-20-2.

• [43]Lamoureux v. Regina, Decision of the Quebec Court of Appeal, [1984] Criminal Reports, Third Series, volume 40, pages 369-375, at page 373.

• [44]Regina v. S.K., Decision of the Ontario Court of Appeal, [1995] Canadian Criminal Cases, Third Series, volume 99, pages 376-383, at pages 381-382.

• [45]Regina v. S.K., Decision of the Ontario Court of Appeal, [1995] Canadian Criminal Cases, Third Series, volume 99, pages 376-383, at pages 381-382.

• [46]Regina v. Layte, Decision of the Ontario County Court, [1984] Criminal Reports, Third Series, volume 38, pages 204-208, at page 208.

• [47]Regina v. Cerasuolo, Decision of the Ontario Court of Appeal, [2001] Canadian Criminal Cases, Third Series, volume 151, pages 445-448, at page 447.

• [48]Regina v. Dorsey, Decision of the Ontario Court of Appeal, [1999] Ontario Appeal Cases, volume 123, pages 342-346, at page 345.

• [49]Regina v. Cerasuolo, Decision of the Ontario Court of Appeal, [2001] Canadian Criminal Cases, Third Series, volume 151, pages 445-448, at page 447.

• [50]Ontario Ministry of the Attorney General, Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions, 1993, page 279.

• [51]Regina v. Rubenstein, Decision of the Ontario Court of Appeal, [1988] Canadian Criminal Cases, Third Series, volume 41, pages 91-95, at pages 94-95, leave to appeal to Supreme Court of Canada refused, [1988] Canadian Criminal Cases, Third Series, volume 41, page VI.

• [52]In Canada, the principle of stare decisis or common law precedents are adhered to. These concepts involve a doctrine that, when a court has once laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases, where the facts are substantially the same, regardless of whether the parties and property are the same. Once a decision is made by a court, it is an authority or a binding precedent in the same court or in other courts of equal or lower rank in subsequent cases where the very point is again in controversy. (See Black's Law Dictionary, 6th Edition, West Publishing Co., 1990).

• [53]Ontario Ministry of the Attorney General, Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions, 1993, page 289.

• [54]Ontario Ministry of the Attorney General, Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions, 1993, page 289.

• [55]Ontario Ministry of the Attorney General, Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions, 1993, page 316.

• [56]The Honourable Patrick T. Galligan, Report to the Attorney General of Ontario on Certain Matters Relating to Karla Homolka, 15 March 1996, page 98.

• [57]In certain circumstances, it may be necessary to discuss some aspects of a resolution agreement with the trial judge privately. This should be done only in rare and compelling situations involving facts that, in the interest of the public or the accused, ought not to be disclosed publicly. Common examples include cases where the accused is terminally ill or has acted as a confidential informer for the police.

• [58]Federal Prosecution Service Deskbook, "Proceedings at Trial and on Appeal", Chapter 20, pages V-20-1 to V-20-11, at page V-20-10.

• [59]Ontario Court of Justice Criminal Proceedings Rules, Rule 28.03(1).
  Available at http://laws.justice.gc.ca/en/C-46/SI-92-99/82202.html

• [60]Section 625.1 of the Criminal Code.

• [61]Section 625.1(2) of the Criminal Code.

• [62]Ontario Ministry of the Attorney General, Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions, 1993, page 365.

• [63]Ontario Ministry of the Attorney General, Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions, 1993, page 366. (See also Regina v. Atkinson, Decision of the English Court of Appeal, [1978] Criminal Appeal Reports, volume 67, pages 200-203, at page 202).

• [64]Ontario Ministry of the Attorney General, Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions, 1993, page 367.

• [65]Ontario Ministry of the Attorney General, Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions, 1993, page 368.

• [66]Boucher v. The Queen, Decision of the Supreme Court of Canada, Canadian Criminal Cases, volume 110, pages 263-280, at page 270.

• [67]Federal Prosecution Service Deskbook, "Principles Governing Crown Counsel's Conduct", Chapter 9, pages III-9-1 to III-9-14, at page III-9-5.

• [68]Ontario Ministry of the Attorney General, Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions, 1993, page 313.

• [69]Ontario Ministry of the Attorney General, Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions, 1993, page 313.

• [70]Regina v. Agozzino, Decision of the Ontario Court of Appeal, [1970] Canadian Criminal Cases, volume 1, pages 380-382, at page 381 ; Regina v. Brown, Decision of the Ontario Court of Appeal, [1972] Canadian Criminal Cases, Second Series, pages 227-228, at page 228.

• [71]Attorney General of Canada v. Roy, Decision of Quebec Queen's Bench, [1972] Criminal Reports New Series, volume 18, pages 89-93 at page 93 ; also cited in Federal Prosecution Service Deskbook, "Proceedings at Trial and on Appeal", Chapter 20, pages V-20-1 to V-20-11, at page V-20-11, and Law Reform Commission of Canada, Plea Discussions and Agreements (Working Paper 60) (Ottawa : 1989), page 30.

• [72]Bernardo Investigation Review : Report of Mr. Justice Archie Campbell, June 1996, page 1.

• [73]The Honourable Patrick T. Galligan, Report to the Attorney General of Ontario on Certain Matters Relating to Karla Homolka, 15 March 1996, page 231.

• [74]The Honourable Patrick T. Galligan, Report to the Attorney General of Ontario on Certain Matters Relating to Karla Homolka, 15 March 1996, pages 55-64, 71-76, 84-89, 232.

• [75]The Honourable Patrick T. Galligan, Report to the Attorney General of Ontario on Certain Matters Relating to Karla Homolka, 15 March 1996, page 89.

• [76]The Honourable Patrick T. Galligan, Report to the Attorney General of Ontario on Certain Matters Relating to Karla Homolka, 15 March 1996, pages 90-93.

• [77]The Honourable Patrick T. Galligan, Report to the Attorney General of Ontario on Certain Matters Relating to Karla Homolka, 15 March 1996, pages 97-109.

• [78]The Honourable Patrick T. Galligan, Report to the Attorney General of Ontario on Certain Matters Relating to Karla Homolka, 15 March 1996, pages 46, 50.

• [79]The Honourable Patrick T. Galligan, Report to the Attorney General of Ontario on Certain Matters Relating to Karla Homolka, 15 March 1996, pages 46, 193.

• [80]The Honourable Patrick T. Galligan, Report to the Attorney General of Ontario on Certain Matters Relating to Karla Homolka, 15 March 1996, page 89.

• [81]The Honourable Patrick T. Galligan, Report to the Attorney General of Ontario on Certain Matters Relating to Karla Homolka, 15 March 1996, page 51.

• [82]The Honourable Patrick T. Galligan, Report to the Attorney General of Ontario on Certain Matters Relating to Karla Homolka, 15 March 1996, page 51.

• [83]The Honourable Patrick T. Galligan, Report to the Attorney General of Ontario on Certain Matters Relating to Karla Homolka, 15 March 1996, pages 2, 7.

• [84]The Honourable Patrick T. Galligan, Report to the Attorney General of Ontario on Certain Matters Relating to Karla Homolka, 15 March 1996, page 111.

• [85]The Honourable Patrick T. Galligan, Report to the Attorney General of Ontario on Certain Matters Relating to Karla Homolka, 15 March 1996, pages 112-113.

• [86]The Honourable Patrick T. Galligan, Report to the Attorney General of Ontario on Certain Matters Relating to Karla Homolka, 15 March 1996, pages 192, 201, 203-204.

• [87]The Honourable Patrick T. Galligan, Report to the Attorney General of Ontario on Certain Matters Relating to Karla Homolka, 15 March 1996, page 201.

• [88]Section 610(2) of the Criminal Code states that a conviction for the offence of manslaughter bars a subsequent indictment for the same homicide charging it as murder.

• [89]The Honourable Patrick T. Galligan, Report to the Attorney General of Ontario on Certain Matters Relating to Karla Homolka, 15 March 1996, page 201.

• [90]The Honourable Patrick T. Galligan, Report to the Attorney General of Ontario on Certain Matters Relating to Karla Homolka, 15 March 1996, page 199.

• [91]The Honourable Patrick T. Galligan, Report to the Attorney General of Ontario on Certain Matters Relating to Karla Homolka, 15 March 1996, page 197.

• [92]The Honourable Patrick T. Galligan, Report to the Attorney General of Ontario on Certain Matters Relating to Karla Homolka, 15 March 1996, page 203.

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