Negotiating Plea Bargains in Ontario

Only around two to five percent of criminal matters in Canada end up at a full trial. The majority of cases are resolved through plea bargain negotiations.

Trials are expensive and time-consuming, so there is a preference to avoid them if possible. Negotiating plea bargains can ensure that matters do not proceed to trial—but how do they work, what are the benefits, and should you accept a plea deal if it is offered to you?

Let us find out.

A plea bargain or “plea deal” is an agreement between a defendant and the prosecution (in Canada, the Crown attorney) to resolve a criminal charge without a full trial.

This arrangement is seen as a win-win for the state and the defendant because the defendant often avoids the most serious consequences of the criminal charge while the state avoids the costs and resources necessary for a full trial.

Even if the Crown attorney and the defendant’s lawyer negotiate a plea bargain, it requires court approval. The judge must be satisfied that the defendant understands and agrees to the terms and the proposal does not bring the administration of justice into disrepute. Judges can deny or modify the plea deal if necessary.

Types of plea bargains in Canada

In Canada, plea bargains can be utilized in several different circumstances in criminal matters. The main types of plea bargains are:

• Charge bargaining: the simplest form of plea deal, where the Crown agrees to reduce or withdraw certain charges if the defendant pleads guilty plea to others, e.g., pleading guilty to assault causing bodily harm in exchange for the charge of aggravated assault being dropped. The defendant may also plead guilty to one or more charges in exchange for the dismissal of other charges.
• Sentence bargaining: the defendant pleads guilty on the understanding that the Crown imposes a lighter sentence, such as probation or a short custodial term rather than the maximum term, or a conditional or absolute discharge to avoid a criminal record.
• Fact bargaining: the defence and Crown make a deal on the facts to be presented to the judge to support the guilty plea. Often, this will limit the aggravating factors associated with the offence, which may influence sentencing by the judge.

Sometimes, these types of plea bargains are combined into a hybrid approach that includes fact bargaining, charge reduction, and sentencing recommendations.

Plea bargains are not explicitly mentioned or defined in the Canadian Criminal Code, despite being widely practiced and recognized as a legitimate part of the criminal justice system.

The process is guided by common law (court decisions) and principles of fairness, voluntariness, and transparency, with guidance provided by the Supreme Court in some cases.

The advantages of a plea bargain for a defendant are:

• Reduced charges
• Reduced sentences
• Prevention of a criminal record (in some cases, especially with first offenders)
• Reduced costs, time, and inconvenience
• Reduced stress

The advantages of a plea bargain for the state are:

• Avoidance of an expensive, time-consuming trial
• Freeing up of resources in the criminal justice system
• Avoidance of stress for vulnerable victims

Essentially, without plea bargaining, the criminal justice system in Canada would be clogged to the brim and cases would take years to resolve due to a lack of resources—which would potentially breach the right of Canadians to a speedy trial.

While plea bargaining is widely seen as an essential component of the criminal justice system in Canada, it is not without some potential disadvantages—not least of which is that Canadians have the right to a fair trial.

Other potential disadvantages include:

• The risk of coercion or pressure to accept a deal
• An accused person pleading guilty even if they are innocent
• Can be problematic for defendants without legal representation
• Reduced transparency (plea deals are often negotiated behind closed doors)
• Inconsistent outcomes that undermine public confidence in the criminal justice system
• Downplaying of victim’s trauma or loss
• Less judicial scrutiny because the facts of the case may not come out in court

The plea deal process typically begins before the trial date during pre-trial meetings. However, plea negotiations can be conducted at almost any point in criminal cases, especially if unexpected evidence may change the course of the case.

Generally speaking, after the lawyer for the defendant has received and reviewed the Crown’s evidence, the lawyer and the Crown attorney meet to discuss possible resolutions. Often, the defence will present mitigating information to reduce the potential consequences, especially first offenders and those willing to seek counselling.

If an agreement between the lawyers is reached, the accused will decide whether to accept it and it will then be presented to the court.

Can a plea deal be withdrawn?

If a plea deal was not entered voluntarily, a judge decides that the accused did not understand the consequences of the deal or a serious mistake was made during the plea-bargaining process, it may be withdrawn before sentencing.

Whether to accept a plea deal depends on many factors, including the strength of the Crown’s evidence, how serious the charges are, the chances of acquittal at trial, the potential impact of a criminal record, and the sentencing risks if convicted.

The plea deal decision rests with the defendant but no plea deal should be accepted before discussing the pros and cons with a criminal defence lawyer. If the plea deal is not accepted, the defendant retains the right to a fair trial.

Few successful plea bargains are made without the help of criminal defence lawyers. An experienced defence lawyer will attempt to negotiate a favorable outcome for the accused based on the expectations of what would happen if the case proceeded to trial.

A seasoned defence lawyer will be able to identify any weaknesses in the prosecution’s case, which may be used as leverage in negotiations with the Crown attorney.

To understand your legal options if you have been charged with a criminal offence in Ontario, speak to a criminal defence lawyer in Ottawa during a free and confidential consultation.