Plea Discussions

• Author: David Layton; Michel Proulx
• Pages: 427-482

427

CHAPTER 9

PLEA DISCUSSIONS

A. INTRODUCTION

Aside from instances where the prosecution stays or withdraws all

charges, every accused person shares a common experience: enter ing a

plea of guilty or not guilty in court. The large preponderance of these

individuals plead guilty.1 For them, the plea has an immediate and dra-

matic impact on the proceedings. A conviction is recorded, there is no

trial on the issue of culpability, and the matter proceeds to sentencing.

Deciding how to plead in response to a charge is thus the key decision

for many, many accused, and not surprisingly the law accords them

total freedom of choice in this regard.

Defence counsel almost always plays a central role in advising

the accused with respect to the plea. A common and crucial aspect of

counsel’s role in this regard is participation in resolution discussions

with the Crown, also sometimes known as plea discussions or plea

bargaining. The vast majority of criminal cases are resolved through

resolution discussions.2 It is not going too far to say that “[i]n today’s

criminal justice system . . . the negotiation of a plea bargain, rather

1 See Ontar io, Report of the Criminal Justice Revie w Committee, by Hugh Locke,

John D Evans, & Murr ay D Segal (Toronto: At torney General of Ontar io, 19 99)

at 55–56 [Criminal Justice Review Re port].

2 See R v Nixon, 2011 SCC 34 at para 47 [Nixon].

ETHICS AND CRIMINAL LAW428

than the unfolding of a trial, is almost always the critical point for a

defendant.”3

In conducting plea discussions, defence counsel must respect the

client’s freedom of choice in entering a plea yet also fulf‌ill the profes-

sional obligation to provide the client with competent advice. The very

essence of the client-lawyer relationship is caught up in this mix and

permeates any analysis of counsel’s ethical duties when engaging in

plea discussions. Counsel walks a f‌ine line in undertaking plea discus-

sions and advising the client. She must not dominate the client and

impose a course of action without regard for the client’s wishes. Nor

should counsel act as a “dump truck,” enabling rote and rushed justice

by facilitating a guilty plea that is contrary to the client’s best interests.

Rather, the lawyer’s duty is to support the client’s freedom of choice

through the provision of quality legal advice.

B. TERMINOLOGY AND SCOPE OF INQUIRY

A potentially confusing feature of the literature on plea discussions is

the failure to articulate exactly what process is being studied. More-

over, certain phrases tend to ra ise the public’s hackles, especi ally those

employing the term “bargaining,” and have thus taken on a distaste-

ful meaning in some quarters. We will follow the lead of the Martin

committee and use the term “resolution discussions” to refer to “any

discussions between counsel aimed at resolving issues that a criminal

prosecution raises.”4 The scope of resolution discussions is very wide,

encompassing not only negotiations concerning a po ssible plea of guilty

but almost any other aspect of the criminal proceeding, including an

agreement to admit evidence, the adoption of an informal discovery

process, or the scheduling of the trial itself. The primary focus of this

chapter is plea discussions, or plea negotiations, by which we mean

discussions directed towards a plea of guilty by the accused in return

for the prosecutor agreeing to take or refrain from taking a particular

course of action.5 We are therefore conf‌ining ourselves to a particular

aspect of resolution discussions.

3 Missouri v Frye, 132 S Ct 1399 at 1407 (2012) [Missouri].

4 Ontario, Rep ort of the Attorney General’s Advi sory Committee on Charge Screen-

ing, Disclosure, and Resolution Di scussions (Toronto: Attorney General of Ontar io,

1993) (Chair: G Ar thur Martin) at 282 [Martin Com mittee Report].

5 This def‌inition is a dapted from the Law Reform Comm ission of Canada, Plea

Discussions and Agreeme nts (Working Paper 60) (Ottawa: The Commission,

1989) at 40, recommendations 1 & 2 [Plea Discussion s and Agreements].

Plea Discus sions429

While our focus is often on instances where negotiations occur be-

tween lawyers for the defence and the Crown, many of the obligations

discussed in this chapter apply whenever an accused is considering

whether to plead guilty. That is to say, the bulk of the duties discussed

apply any time an accused person pleads guilty or considers doing so,

whether or not plea discussions have occurred between the defence

and the Crown.

C. LEGAL FACETS OF A GUILTY PLEA

An accused who pleads guilty is formally and publicly admitting to t he

crime.6 There will be no trial on the general issue of culpability, the

Crown will not be required to make its case on a standard of proof be-

yond a reasonable doubt, and the accused will relinquish many proced-

ural rights, including some that are constitutionally enshrined.7 The

accused no longer asserts the right to make full answer and defence,

abandons the rights to si lence and non-compellability as a w itness, and

forgoes the presumption of innocence.8 A guilty plea thus operates to

waive many of the most sacrosanct rights afforded an accused.9

Flowing naturally from these observations is the proposition that

the accused has complete control and freedom of choice over the deci-

sion whether to enter a guilty plea. This proposition is well-e stablished

by Canadian caselaw.10 It also has constitutional dimensions, derived

from the fundamental principle of justice that accords an accused the

6 See R v Gardiner (1982), 68 CCC (2d) 477 at 514 (SCC) [Gardiner]; R v Parris,

2013 ONCA 515 at para 121; R v Eizenga, 2011 ONCA 113 at para 43 [Eizenga];

R v Le, 2013 BCCA 455 at para 18; R v Duong, 2006 BCCA 325 at para s 9–10 [Duong].

7 See R v RP, 2013 ONCA 53 at para 39, leave to appeal to SCC refu sed, [2013]

SCCA No 133 [RP]; R v DMG, 2011 ONCA 3 43 at para 41 [DMG]; Eizenga, above

note 6 at paras 43 and 70; R v RT (1992), 17 CR (4th) 247 at para 13 (Ont CA)

[RT]; Duong, above note 6 at p ara 12; R v Hoang, 2003 ABCA 251 at para 17

[Hoang]; R v Messer vey, 2010 NSCA 55 at para 56 [Messervey]; R v Brown, 2006

PESCAD 17 at para 37 [Brown].

8 See DMG, above note 7 at para 41; Brown, above note 7 at para 37; R v Adgey

(1973), 13 CCC (2d) 177 at 182– 83 and 190 (SCC) [Adgey].

9 See RP, above note 7 at para 39; Eizenga, above note 6 at par a 43; RT, above note 7

at para 13.

10R v GDB, 2000 SCC 22 at para 3 4 [GDB]; R v Murray, 2000 NBCA 2 at para 10;

R v Laperri ère (1996), 109 CCC (3 d) 347 (SCC) [Laperrière], aff’g the dissent

of Bisson JA in (1995), 101 CCC (3d) 462 at 470–71 [para 69] (Q ue CA); R v

Lamoureux (1984), 13 CCC (3d) 101 at 105 [par a 24] (Que CA) [Lamoureux];

DMG, above note 7 at para 109; RT, above note 7 at para 16.