Canadian Criminal Sentencing/Procedure/Plea Bargain
Introduction
editA plea bargain is an agreement between the Crown and defence whereby the Defence agrees to plead guilty to particular offences in exchange for a particular proposal on sentence. If the defence accepts the offer on sentence, the agreement is put the judge as a jointly recommended sentence.
Joint Recommendations
editA joint recommendation is an agreement on penalty between the Crown and Defence to present a single penalty recommendation that the judge is asked to adopt. There was a major development in the law on Joint Sentencing Submissions in R. v. Anthony‑Cook, 2016 SCC 43 which needs to be added to this section.
A joint recommendation does not need to encompass all aspects of the sentence. There can be a joint recommendation on part of a sentence, such as the form of penalty, while still keeping aspects of the penalty in dispute, such as the length of the penalty, conditions associated with the penalty, or ancillary orders.[1]
A joint submission often indicates a lower range of sentence.[2] The motivation for an agreement is often due to a weak aspect in the Crown's case or the risk of the judge giving a higher penalty than what would sought by defence without an agreement.
A joint recommendation may even be accepted where it is more lenient than the lower end of the normal range.[3]
Sentences arising from a joint recommendation "have little or no precedential value."[4]
Deference
A joint recommended sentence is a sentence for which the courts do not readily overturn. [5]
The court may only do so where the sentence in not within a reasonably appropriate range for the circumstances.[6] The judge must give reasons for not adopting a joint recommendation.
A judge should give serious consideration to a joint sentencing proposal.[7]
There is less weight given to "joint recommendations" that do not involve a "quid pro quo" (i.e. some reduced recommendation on sentence).[8] Likewise, where the accused was without counsel less deference is given.[9]
When Not Followed
If a judge has reservations to adopt a joint recommendations it should allow counsel an opportunity to respond.[10]
Likewise, where a judge is looking to go beyond the range set by counsel, the judge should equally provide notice to the parties before going above or below the range.[11]
Similarly, where a judge wishes to impose a condition that was not contemplated by either party nor could it have been easily foreseen, then the judge should also provide notice before doing so.[12]
Other Issues
Where the accused misapprehended the joint recommendation, it can be grounds for a successful appeal of a sentence.[13]
Where an offender is unaware of a significant consequence of a particular sentence agreed upon, such as deportation without appeal, the court may reopen the consideration of sentence.[14]
- ↑ e.g. R. v. Parsons, 2012 CanLII 81320 (NL SCTD) - length of CSO and ancillary orders in dispute alone
- ↑ R v Kane 2012 NLCA 53
- ↑ R v Oake 2010 NLCA 19 at 64
- ↑
R. v. Johnston, 2011 NLCA 56
R. v. Johnson, 2010 ABQB 546
R. v. Benlolo 2006 CanLII 19284 (ON CA), (2006), 81 O.R. (3d) 440 (C.A.)
- ↑
R. v. J.W.I.B., 2003 MBCA 92
R. v. Pashe (S.J.) 1995 CanLII 6256 (MB C.A.) - ↑
R. v. Smith, 2004 BCCA 657
R. v. Gartner, 2010 BCCA 600
R. v. Wickstrom, 2011 BCSC 745
R. v. Cerasuolo 2001 CanLII 24172 (ON CA)
R. v. DeSousa, 2012 ONCA 254
- ↑ R v GWC, 2000 ABCA 333 at para 17
- ↑ R. v. Wolonciej, 2011 MBCA 91 at 10
- ↑ R. v. Bambrick, 2011 NLCA 79 at para. 14
- ↑ R v GWC, 2000 ABCA 333 (CanLII), 2000 ABCA 333 at 26
- ↑
R v Hood, 2011 ABCA 169 at 14
R v Abel, 2011 NWTCA 4 at 23
R. v. Burback, 2012 ABCA 30
- ↑ R v Beal, 2011 ABCA 35
- ↑ e.g. R v Kinney, 2011 SKCA 122
- ↑ R. v. Jamieson, 2011 NSCA 122
Repudiating a Plea Bargain
editIf the Crown renegs on a plea deal on sentence, the Defence may make application to withdraw the guilty plea.[1]