Let’s first take a step back and go over some basics.
In 1975, the Law Reform Commission of Canada defined a plea bargain as "any agreement by the accused to plead guilty in return for the promise of some benefit."
The essence of any plea bargain is a quid pro quo.
So the quid: The accused gives up their constitutional right to be presumed innocent and waives their right to a trial. In other words, the accused relieves the state of the heavy obligation of proving guilt beyond a reasonable doubt.
After all, there is only one guarantee in criminal law — if you plead guilty you will be found guilty.
And the quo: The accused receives the benefit of reduced charges, or less jail time or some measure of certainty about the ultimate sentence.
But it is not just the accused and the prosecution who benefit from guilty pleas. Plea bargaining is an essential lubricant in the justice system.
Recently, in R. v. Anthony-Cook, the Supreme Court of Canada described plea agreements as “vitally important to the well-being of our criminal justice system,” without which the justice system would “eventually collapse under its own weight.”
So, everyone wins — unless you are the innocent accused who is induced into pleading guilty.
The Criminal Code recognizes the fundamental importance that all admissions of guilt are fully voluntary. Before a court can accept a guilty plea, the judge must be satisfied that the accused is acting under their own free will. There is no arm twisting allowed in a plea court.
But all actors in the justice system turn a blind eye to all the subtle arm twisting that takes place outside the courtroom. In reality, many guilty pleas are not truly voluntary.
There is a massive power imbalance between the state and the accused. The state has an army of fully funded prosecutors, investigators and forensic experts. The state is never unrepresented in court, unlike so many impoverished accused. As a starting point, the playing field is far from level.
There are also perverse incentives that many prosecutors can unwittingly leverage to extract guilty pleas.
Take, for example, the case of a homeless accused who is charged with shoplifting. It is all too common for this type of offender to be warehoused in jail, unable to make bail. After a week in Dickensian jail conditions, the man is presented with two options:
Option one: Plead guilty and walk out of jail today.
Option two: Plead not guilty and spend three months in jail waiting for a trial.
How can any plea in these circumstances be truly voluntary?
Imagine this example: A father is charged with manslaughter in the death of his infant child. The father says he is innocent, but the Crown retains a respected and world-renowned expert who concludes that the child died of shaken baby syndrome. The Crown tells the devastated father that it will seek a lengthy penitentiary sentence if he is found guilty after trial — the father will lose his family, his job and a decade of his life.
But there is a deal to be had.
If the father pleads guilty, the Crown will agree to drop the charge from manslaughter to aggravated assault and will agree to only a six-month jail sentence.
This was the real-life choice faced by Richard Brant. He took the deal. Was there really a choice?
It turned out that the world-renowned expert in Brant’s case was a man now known to be responsible for scores of wrongful convictions — disgraced former pathologist Charles Smith. In 2011 — 15 years after Brant pleaded guilty — the Ontario Court of Appeal found that a miscarriage of justice had occurred and entered an acquittal.
Here’s one more example. A hard-working, pro-social and otherwise loving husband is charged with domestic mischief. It is alleged that during an argument he grabbed his wife’s phone and smashed it. A neighbour called the police.
Perhaps he was actually guilty or perhaps it was all a misunderstanding.
His wife does not want to press charges, but once the police are called, it is not her choice. The husband is released from jail on bail, but, despite the wishes of his wife, he is not allowed to contact her in any way. He can’t move back home or see his children. The family’s finances are stretched. The husband is renting an apartment and waiting for his trial (with all the safeguards and fact-finding that such a process entails), but that trial is set for a year away.
He can’t afford a lawyer, so he asks the Crown to agree to vary his bail conditions so he can move home.
This is what everyone wants.
A frequent response from the Crown is: If you plead guilty, we will agree that you can move home. If you don’t plead guilty, there will be no agreement.
These are the types of inducements that lead to wrongful convictions and questionable guilty pleas:
release from jail, shorter sentence, reduced charges, contact with family and on and on and on.
In 2009, when Brant’s appeal was filed at the Court of Appeal, Justice Michael Code (he was a law professor at the time) called these questionable plea situations the “hidden underbelly of the justice system.”
Defence counsel can be tempted to assist their clients to take the easy way out and make these types of deals. And it is the easy way out — fighting is harder, more stressful and more costly.
Make no mistake, there are some defence counsel who value a quick plea over a complicated trial.
But also make no mistake, increased responsibility must fall on the shoulders of our Crown attorneys to ensure that discretion is exercised appropriately and there are no improper inducements.
After all, it is the Crown who holds the balance of power in most plea negotiations. It is the Crown who has the power to agree to a reduced sentence, drop charges, modify facts and modify bail conditions.
With greater power there also must come greater responsibility.
So to answer the question: The inherent power imbalance between the state and the accused provides a pretty powerful indication on who the devil is in most plea deals.