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More than 90% of criminal charges in Canada never go to trial. They are either dropped by the Crown or the accused pleads guilty to something. This arrangement puts enormous power in the hands of Crown attorneys, since it is they who decide which charges to pursue and which to drop, and what deals to offer to those accused if they plead guilty. Yet these decisions and the bargains that often result are hidden not only from the public but even from judges. This situation can produce serious problems, argue Marie Manikis and Peter Grbac in a recent analysis in the Manitoba Law Journal. Although it is important for prosecutors to have some discretion on how they proceed on each case, “the current devices designed to constrain and guide prosecutorial discretion in Canada—case law, provincial Rules of Professional Conduct (“Rules”), and Crown Policy Manuals (“Manuals”)—risk prioritizing expedience over procedural fairness and ought to be reformed”, they contend.
“… the fact that plea bargaining negotiations are unrecorded, that the prosecutor’s actions are unsupervised, and that the prosecutor’s decisions need not be justified, make it difficult for the courts—let alone the defence, the public, or the victim35—to require the prosecutor to account for his/her actions…This is particularly problematic for unrepresented accused that might suffer from significant power imbalance in this process.” These discussions usually don’t include victims of crime, either.
Problems with prosecutorial discretion
Negotiations between prosecutors and those charged and their lawyers can cover a wide ground – what a person will be charged with, what penalty will be proposed, and even what facts will be put on the public record related to the case. In regard to the first of these, the Criminal Code often provides several possible charges for the same action, with quite different sentencing implications. The Crown decides how many charges to bring, which also affects sentencing. On the second issue, penalties, Crowns can threaten much stiffer punishments for people who choose not to plead guilty, and indeed, courts typically do give harsher punishments for guilt after a trial compared to pleading guilty. And the third point, facts made public, can have a large effect on a defendant’s future by shaping the public image of what the person actually did if it includes more or fewer disturbing or explanatory elements. In the term ‘agreed statement of facts’ that accompanies a criminal conviction, the word ‘agreed’ is at least as important as the word ‘facts’!
Whether a person pleads guilty is related not just to the facts but to their situation, as discussed in a previous post. For example, people held in jail on remand – who tend to be poorer, less educated, and disproportionately visible minorities – are considerably more likely to plead guilty. Accused who cannot afford good legal assistance – which in practice turns out to be most people – are also more likely to plead guilty to avoid bankrupting themselves. Many people who pled guilty to serious crimes have later been exonerated by DNA evidence.
All of this suggests that too much discretion for Crown prosecutors carries serious risks. However Canadian courts, including the Supreme Court, have been very reluctant to rule on prosecutors’ discretion. Conduct that has been found unacceptable at trial has been found to be acceptable in bargaining before a plea.
Manikis and Grbac suggest several changes that could improve the situation, modeled to some degree on the German system, where even a confession is treated as one piece of evidence, not as a sufficient basis for a conviction.
There suggestions are, first, to keep notes and records of all meetings that involve plea bargaining or of any meetings in which defense lawyers advise their client to plead guilty. These notes would be available to judges to ensure that procedures had been fair.
Similarly, the parties should provide formal reasons to the judge as to why an agreement on a plea or prospective sentence is reasonable.
The authors also suggest that there should be more alternatives to criminal prosecution, especially for minor crimes. Alternatives to a criminal plea, such as community service, compensation, or other forms of restoration should be used much more often.
Finally, the Crown should avoid dealing with weak cases, where the evidence to convict may be lacking, by negotiating a plea to a lesser charge or with a lighter sentence. Getting guilty pleas may help the statistics of prosecutors, but it does not help the administration of justice.
Source: Marie Manikis and Peter Grbac. 2018. Bargaining for Justice: The Road Towards Prosecutorial Accountability in the Plea Bargaining Process. Manitoba Law Journal 40(3). Available free online.