Plea negotiations probably settle over 90 per cent of matters in the criminal justice system, giving certainty and finality to both Crown and defence. The amount of court time saved is immeasurable.
But what happens when a deal is not a deal? If one Crown attorney gives you a position on a guilty plea, and another Crown attorney purports to rescind that deal, what do you do?
Your client will be beside himself - and you will be next to him.
On a practical level, you can, of course, plead your client, and announce to the court that this was the Crown’s position, but that requires some fortitude both on your part and that of your client. You can go back to see the original Crown, and ask him or her to come into court to do the plea, but what if he now feels he must defer to his colleague?
The Ontario Ministry of the Attorney General’s Crown Policy Manual states: “Unless there are exceptional circumstances, Crown counsel must honour all agreements reached during resolution discussions.”
But note - with a chill - what it also says: “Crown counsel must not purport to bind the attorney general’s right to appeal any sentence.”
Defence counsel should consider warning the client that his local provincial Crown cannot bind the attorney general’s appellate rights. Similarly, the Federal Prosecution Service permits appeals after negotiated pleas in exceptional circumstances, after a review by the senior regional director and the assistant deputy attorney general.
Unfortunately, the Rules of Professional Conduct of the Law Society of Upper Canada do not specifically deal with the prosecutor’s duty with respect to plea negotiations, but they do deal with undertakings. An offer by the Crown to settle a matter is an undertaking. Rule 4.01 (7), the lawyer as advocate, states: “A lawyer shall strictly and scrupulously carry out an undertaking given to the tribunal or to another lawyer in the course of litigation.”
In the brief commentary that follows, the rules state: “Unless clearly qualified, the lawyer’s undertaking is a personal promise and responsibility.”
The Federal Prosecution Service Deskbook states: “Crown counsel who conduct sentence negotiations shall have full authority to enter into binding agreements.” Furthermore, it says: “Crown counsel should maintain a complete record of all plea and sentence discussions or agreements on the file. This will promote a consistent and informed practice.”
If, for example, the extent of the victim’s injuries were not known, or a much more serious criminal record came to light, the Crown might be justified in changing their position.
In Ethics and Canadian Criminal Law, Michel Proulx and David Layton state that it is only in rare circumstances that the public interest can release the Crown from an agreement, citing, most particularly, fraud and misrepresentation.
The FPS Deskbook states: “All negotiated plea or sentence agreements should be honoured by the Crown unless fulfilling the agreement would clearly be contrary to the public interest. . . . Additionally, Crown counsel may be justified in refusing to fulfil an agreement if misled about material facts.”
Yet this is not to be done lightly, and the Deskbook requires consultation with and the approval of the senior regional director.
One senior lawyer at justice is known to quip that the Court of Appeal does not exist to correct the mistakes of inexperienced counsel. If the Crown does appeal, the defence will of course advise the court that the accused entered into the plea on the understanding that that was the Crown’s position, and a new trial might be ordered.
Law society Treasurer Gavin MacKenzie addressed the issue of Crown repudiation of plea bargains bluntly in his text Lawyers and Ethics: “If a plea bargain is made, the Crown has a duty to uphold it.”
He cites the 1980 Ontario case R. v. Crneck, Bradley, and Shelley. One accused made a statement as part of an agreement in which she would become a witness, but another Crown decided not to honour the undertaking. Justice Horace Krever held that “The Crown must be expected to carry out its agreement,” and, citing the doctrine of abuse of process, he stayed the proceedings.
A deal is a deal, and that should be the end of it.
Rosalind Conway practises criminal law in Ottawa. She can be reached at firstname.lastname@example.org