What is a plea bargain?

What is a plea bargain?

A plea bargain is an agreement between the Crown prosecutor and the defence lawyer in a criminal case. Typically, the defendant agrees to plead guilty to lesser or fewer charges than they initially faced in exchange for a more lenient sentence or other concessions.

Plea bargains can be initiated by either side and are usually struck before the trial date. However, negotiations can be started mid-trial if unexpected evidence emerges to the detriment of either side. The Crown and the defence may also engage in plea bargaining during appeals, especially if new information about the case arises or one side believes it has a significant advantage.

In Canada, most criminal cases are dealt with through guilty pleas resulting from agreements reached before a trial. According to the Department of Justice, “only nine percent of the cases coming into the court system are resolved by way of a trial … of the 91 percent of cases that do not go to trial, 41 percent do not result in a conviction; they are withdrawn by the Crown or resolved without a conviction in some other way … 69 percent of these cases are resolved by way of a change of plea to guilty.”

What are the advantages of a plea bargain?

Someone facing serious charges could receive a lengthy sentence if found guilty at trial. However, their defence lawyer may be able to negotiate with the Crown to work out an agreement allowing them to plead guilty to a lesser charge that carries a reduced sentence.
Other advantages of a plea bargain include:

• Efficiency and cost: Trials can be time-consuming and expensive since they involve various hearings and proceedings, witnesses and resources. A plea bargain expedites the resolution of cases, reducing the burden on the judicial system.
• Certainty: If a defendant agrees to a plea bargain they will have more say in the outcome of the case, including the sentence they will receive, as long as the judge agrees with the plea deal that was struck. With a trial, sentencing is left in the hands of the court.
• A sense of closure: Trials can take many months, or even years, to get underway and be completed. The process can be emotionally draining for complainants, defendants and witnesses. Plea bargains offer a quicker resolution without the need for anyone to testify, bringing the criminal matter to a close and allowing everyone to move on with their lives.

What are the disadvantages of a plea bargain?

The most serious concern with the plea-bargaining process is that the accused may be induced to plead guilty to a charge when they are, in fact, innocent. Keep in mind that everyone charged with a criminal offence has the right to legal counsel under the Canadian Charter of Rights and Freedoms. Their attorney should not be pressuring them to strike a plea deal if they want their day in court.

Other disadvantages of a plea bargain include:

• Limited appeal options: Since the defendant has effectively waived their right to a trial and admitted to a criminal offence they may have fewer, if no, grounds for an appeal down the road.
• No guarantee it will be accepted: While plea bargains are often offered with the promise of a more lenient sentence, there is no guarantee that the court will agree to the terms of the agreement. Judges are not involved in the plea bargain process and can reject or modify the terms of the plea deal if they don’t believe it is appropriate.

How are plea bargains structured?

Let’s say that someone is accused of several different offences, such as impaired driving, driving without a licence and having marijuana accessible in their vehicle. The Crown might agree to drop the latter two charges for a guilty plea on the impaired driving charge. Or if the evidence supporting the impaired charge is weak, the prosecutor might agree to drop it in exchange for a guilty plea on the two lesser charges. That would be advantageous for the accused since the penalties are not as severe.

A plea deal can also revolve around penalties. For example, in exchange for a guilty plea on a charge such as theft under $5,000, the Crown could agree not to recommend a jail term but instead settle for a fine, restitution and probation.

Another option is for the defendant to plead guilty to the charges if they are treated as a summary conviction offence rather than an indictable offence since the latter carries harsher penalties. Plea bargaining can also be used to secure a conditional or absolute discharge upon conviction. When that happens, defendants avoid a permanent criminal record provided they do not re-offend.

Is plea bargaining in the Criminal Code?

The Criminal Code contains no provisions that explicitly mention plea bargaining. However, it does provide requirements for entering a valid guilty plea by an accused. As s.606(4) states, “where an accused or defendant pleads not guilty of the offence charged but guilty of any other offence arising out of the same transaction, whether or not it is an included offence, the court may, with the consent of the prosecutor, accept that plea of guilty and, if the plea is accepted, the court shall find the accused or defendant not guilty of the offence charged and find him guilty of the offence in respect of which the plea of guilty was accepted and enter those findings in the record of the court.”

According to the Department of Justice (DoJ), the Law Reform Commission of Canada in 1975 defined "plea bargaining" as "any agreement by the accused to plead guilty in return for the promise of some benefit.” Over time, “considerable objections grew against designating the practice in any way that implied that justice could be purchased at the bargaining table. Consequently, there was a movement … toward more neutral expressions such as ‘plea discussions,’ ‘resolution discussions,’ ‘plea negotiations’ and ‘plea agreements.’”

The DoJ adds, “The use of such expressions marked an evolution in the practice itself, since they implicitly acknowledged it to be much more wide-ranging than simple bargaining and to involve the consideration of issues beyond merely that of an accused pleading guilty in exchange for a reduced penalty.”

What is the role of a criminal lawyer?

Defence counsel must protect the client from being convicted unless the Crown can present legal evidence that proves guilt beyond a reasonable doubt. A criminal defence lawyer can only structure a plea bargain with the defendant’s knowledge and input.

The defence lawyer then consults with the Crown attorney on what plea arrangement can be struck. Success in plea bargain negotiations depends on the relative strength or weakness of the prosecutor’s case. The likelihood of the Crown accepting a plea deal increases if the defence lawyer can identify gaps or deficiencies in the evidence against the accused.

Contact me for assistance

Drawing on my extensive experience, I can assess the evidence the Crown has accumulated and give you an opinion on what your chances are of obtaining a favourable verdict if your case goes to trial. We can then decide if a plea deal is a good option. I appear regularly before the Ontario Court of Justice and the Superior Court of Justice in Ottawa, L’Orignal, Brockville, Perth and Pembroke. Contact me for a free consultation in French or English.