Resolution Discussion and Process

• Author: Erin Winocur/Danielle Robitaille/Maya Borooah
• Pages: 25-59

25

Resolution

Discussion

andProcess

2

I. Plea Negotiations ......................................... 

A. Preparation ........................................ 

B. Privilege ........................................... 

C. Reverse Disclosure .................................. 

D. Judicial Pre-Trials .................................... 

II. Victims Bill of Rights ...................................... 

A. Resolution Meetings with Victims ...................... 

III. Alternatives to Guilty Plea .................................. 

A. Withdrawals ........................................ 

B. Diversion .......................................... 

C. Peace Bonds ....................................... 

IV. Arraignment and Available Pleas ............................. 

V. Impact of Election ........................................ 

VI. Plea Inquiry and Related Ethics .............................. 

A. Advice on Prospects at a Trial .......................... 

B. Advice Regarding the Implications and Consequences

of a Plea ........................................... 

C. Recommendation ................................... 

D. Voluntary Instructions Indicating Preparedness to Admit

All Elements of the Oence(s) ......................... 

E. Written Instructions ................................. 

VII. Agreement on Facts ....................................... 

VIII. Selecting the Oence ...................................... 

IX. Global Resolutions Under Section  ........................ 

X. Resiling from an Agreement ................................ 

XI. Sensitive Information ...................................... 

Appendix . Sample Guilty Plea ................................. 

Copyright © 2024 Emond Montgomery Publications. All Rights Reserved.

26Sentencing: Principles and Practice

I. Plea Negotiations

Both Crown and defence lawyers have an ethical obligation to avoid contested litiga-

tion whenever possible within the bounds of our other ethical obligations.1 In addi-

tion, the professional conduct rules in several jurisdictions authorize defence lawyers

to speak to prosecutors about the possible disposition of the case unless the client

instructs otherwise.2 It is therefore the default ethical expectation that defence coun-

sel will engage the Crown on the topic of potential resolution even in the absence of

explicit instructions to do so. Indeed, criminal litigation should never be undertaken

without good faith attempts between the parties to see if the matter can be resolved

before trial. Most jurisdictions mandate resolution discussions before trial dates can

be set, signalling system-wide interest in the settlement of cases before trial.3 In some

cases, these negotiations will be short and futile exercises. But for the majority of

criminal cases, resolution is not only possible—it is the probable way the case will

end.4 In Canada “about 90% of criminal cases are resolved through the acceptance of

guilty pleas: many of these pleas are the direct outcome of successful plea negotia-

tions between Crown and defence counsel.”5

1 See Law Society of British Columbia, Code of Professional Conduct for British Columbia

(3January 2013; amendments current to October 2021) at Rule 3.2-4, online: <https://www.

lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-

conduct-for-british-columbia>; Law Society of Alberta, Code of Conduct (updated 26 April

2018; renumbered 1 December 2016) at Rule 3.2-10, online (pdf): <https://learningcentre.

lawsociety.ab.ca/pluginfile.php/68/mod_page/content/5/Code.pdf>; Federation of Law

Societies of Canada, Model Code of Professional Conduct (amended October 2022) at Rule

3.2-4, online (pdf ): <https://flsc-s3-storage-pub.s3.ca-central-1.amazonaws.com/Model%20

Code%20Oct%202022.pdf>.

2 The Law Society of Ontario, Rules of Professional Conduct (1 October 2014; amendments cur-

rent to 24 February 2022) at Rule 5.1-7, online: <https://lso.ca/about-lso/legislation-rules/

rules-of-professional-conduct/complete-rules-of-professional-conduct>; Law Society of

British Columbia, supra note 1 at Rule 5.1-7; Law Society of Alberta, supra note 1 at Rule

5.1-8; Nova Scotia’s Barristers’ Society, Code of Professional Conduct (1 January 2012; amend-

ments current to 24 January 2020) at Rule 5.1-7, online (pdf): <https://nsbs.org/wp-content/

uploads/2019/11/CodeofProfessionalConduct.pdf>.

3 R v Anthony-Cook, 2016 SCC 43 at para 1; Ontario, Report of the Attorney General’s Advisory

Committee on Charge Screening, Disclosure and Resolution Discussions (Toronto: Queen’s Printer,

1993) at 281.

4 R v Nixon, 2011 SCC 34 at para 47.

5 Department of Justice, Victim Participation in the Plea Negotiation Process in Canada (last

modified 13 December 2021), “Introduction,” online: Government of Canada <https://www.

justice.gc.ca/eng/rp-pr/cj-jp/victim/rr02_5/p0.html#:~:text=In%20Canada%2C%20it%20

appears%20that,between%20Crown%20and%20defence%20counsel>; Statistics Canada, Adult

Criminal Court Statistics, 2008/2009, by Jennifer Thomas, Catalogue No 85-002-X, Vol 30,

No 2 (Ottawa: Statistics Canada, 2010), online: <https://www150.statcan.gc.ca/n1/pub/85-

002-x/2010002/article/11293-eng.htm>. Other writers have estimated that approximately

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Chapter  Resolution Discussion andProcess 27

Much of our legal education focuses on sharpening trial advocacy skill; less atten-

tion is paid to the art and science of the resolution. This remains the case in spite of the

Supreme Court of Canada’s direction in Anthony-Cook that

[r]esolution discussions between Crown and defence counsel are not only commonplace

in the criminal justice system, they are essential. Properly conducted, they permit the

system to function smoothly and eciently.6

This chapter is meant to assist practitioners in their approach and execution of plea

negotiations. It is important to note that the Crown and the defence undertake this

process from dierent perspectives. On the one hand, the Crown, ever the “minister

of justice,” is focused on a resolution that is fair and in the public interest.7 On the

other hand, the defence is focused on following its client’s instructions and on pursu-

ing the personal goals and objectives of that client while maintaining its obligations to

the court. A workable resolution that meets the priorities of both parties can often be

achieved. However, many believe that the marker of a fair deal is that both sides are

dissatisfied with the final outcome. Indeed, both parties should approach negotiations

in the spirit of compromise and flexibility, knowing that neither is likely to get every-

thing they hope for. The challenge is to arrive at a plea and sentencing agreement that

both sides can live with and that the sentencing judge is likely to endorse.

The central tension for defence counsel in the course of resolution discussions is

a faithful discharge of the professional duties and responsibilities to the client that

maintains the centrality of the accused’s choice in the process. The accused alone

decides whether to plead guilty or not. Counsel plays an integral role by negotiating

and giving advice and recommendations but must all the while be very careful not to

override the client’s freedom of choice at the ultimate juncture.

A. Preparation

Counsel should prepare for negotiations with the same care and attention paid to

later stages of the litigation process. The work of preparing for plea negotiations is

dierent for defence and Crown and varies from case to case depending on a host of

dynamic factors, including the level of sophistication of the client, the complexity of

the case, and area of the law. Nonetheless, it is possible to apply a general framework

to assist counsel in preparing for plea negotiations.

90 percent of criminal cases are resolved with guilty pleas: see Gail Kellough & Scot Wortley,

“Remand for Plea: Bail Decisions and Plea Bargaining as Commensurate Decisions” (2002)

41:1 Brit J Crim 186.

6 Anthony-Cook, supra note 3 at para 1.

7 Boucher v The Queen, [1955] SCR 16, 1954 CanLII 3 at 24; R v Regan, 2002 SCC 12 at para65;

Miazga v Kvello Estate, 2009 SCC 51 at para 47.

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