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EXECUTIVE SUMMARY

• Introduction
• Victims' Rights and the Prosecution Of Criminal Cases
• Plea Bargaining In Canada
• Federal Rule 11: A Viable Legal Framework for the Regulation of Plea Bargaining?
• Victim Participation in the Criminal Justice System: The Precedent of Victim Impact Statements in the Sentencing Process
• Conclusions

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Introduction

In recent years, there has been a clear trend towards recognizing the rights of victims to participate more fully in the criminal justice process. In Canada, significant steps have been taken to ensure that victims are granted the right to participate formally in the sentencing and parole processes through the use of victim impact statements, which may be presented either orally or in written form. However, to date, comparatively little attention has been paid to the question of whether or not victims should be accorded a meaningful role in the process of plea negotiations (or plea bargaining).

In Canada, it appears that about 90% of criminal cases are resolved through the acceptance of guilty pleas: many of these pleas are the direct outcome of successful plea negotiations between Crown and defence counsel. Where a plea bargain has been implemented, the Crown and the accused effectively determine the nature of the charge(s) that will be laid. Since the nature and quantum of sentences are primarily based on the charge(s) brought against the accused, it is clear that the parties to a successful plea negotiation enjoy the de facto power to exercise a considerable degree of influence over the sentence that is ultimately imposed by the trial judge.

The process of plea negotiations may undoubtedly affect the victim of a crime in a most profound and personal manner. However, in Canada, plea bargaining has not been officially recognized and has, therefore, not been subjected to a régime of open scrutiny by the courts. The process largely takes place behind closed doors and there is, therefore, no opportunity for meaningful victim participation.

In 1987, the Canadian Sentencing Commission recognized the need to address victims' interests during plea negotiations. The Commission proposed that plea negotiations should be opened to a formal process of judicial scrutiny and that victims be accorded a role during this critical decision—making point in the criminal justice system. However, this recommendation has not yet been acted upon.

In sharp contrast to the existing situation in Canada, the federal courts in the United States have developed a coherent system for the judicial regulation of plea negotiations. This system is based on a structure that combines Rule 11 of the Federal Rules of Criminal Procedure with significant elements of the United States Sentencing Guidelines. Moreover, each state in the United States has developed an equivalent process for the judicial supervision of plea bargaining. Therefore, the practices of both federal and state courts within the United States furnish a wealth of invaluable experience that may be drawn upon in the process of developing potential models for the judicial regulation of plea negotiations in Canada. More specifically, the American experience may inform Canadian policy makers as to the most effective methods of involving victims in the process of plea bargaining.

The present report examines the current legislative and judicial responses to plea bargaining within Canada and identifies the negative consequences that flow from the lack of any formal process for the regulation of this ubiquitous phenomenon in the criminal justice process. The report then investigates whether the regulatory process entrenched in the federal courts of the United States — by Rule 11 of the Federal Rules of Criminal Procedure and the U.S. Sentencing Guidelines — may serve as a viable model for the judicial supervision of plea bargaining in Canada. In addition, the report scrutinizes the regulatory régime that has been established in the State of Arizona because it specifically provides for direct participation by victims in the judicial hearing that is convened in order to determine whether the court will accept or reject a proposed plea agreement. It is suggested that a viable model for the participation of victims in the plea bargaining process in Canada may be forged by combining elements of both Federal Rule 11 and the Arizona statute.

In order to estimate the potential impact of granting the victims of crime a direct role to play in a formal plea bargaining process before Canadian criminal courts, the report examines the jurisprudence and empirical research that has emerged in relation to the introduction of victim impact statements during court proceedings in Canada.

The report concludes by identifying four potential models for the participation of victims in the plea bargaining process. The report recommends that Canada adopt a model that requires that plea bargaining be officially recognized by the Parliament of Canada; that prosecutors be required to consult with victims during the plea bargaining process; and that, while victims should not be accorded a right of veto, they should nevertheless be granted the right to make oral or written presentations to the trial judge concerning their opinions about the terms, and ultimate acceptability, of any proposed plea agreement.

Victims' Rights and the Prosecution Of Criminal Cases

International Context

There has been a trend, in many countries, towards enhancing the rights of victims in the prosecution of their cases before the criminal courts.

United Nations Declaration

In 1985, the General Assembly of the United Nations adopted the Declaration of Basic Principles of Justice for Victims of Crime. The Declaration imposes a duty upon prosecutors to provide specific information to victims about various aspects of the criminal trial process – including plea bargains and sentencing.

European Initiatives

In March of 2001, The Council of the European Union issued a Framework Decision, which addressed the right of victims in the member states to receive information concerning the prosecution of their cases. In the United Kingdom, for example, a Victims Charter has been established in order to address the need for the Crown to provide victims with accurate information concerning the progress of their cases and to enable them to submit a "victim personal statement" that is subsequently made available to the police, the Crown Prosecution Service, the defence counsel and the trial court.

Initiatives In the United States

The United States has experienced a conspicuous trend towards the enhancement of the rights of crime victims in relation to the prosecution of their cases. All 50 of the states have enacted victims' rights legislation and the federal Congress has kept pace with the state legislatures with the enactment of the Victims' Rights and Protection Act, 1990. One of the central features of this body of legislation is the right of victims to be kept informed of the status and progress of their cases within the criminal court system. Significantly, in the majority of American jurisdictions, prosecutors are required to consult with – or obtain the views of – victims at the plea agreement stage of the process. In a few states, victims are accorded the right to participate in the plea hearing, during which the trial judge is charged with making the decision whether or not to accept a proposed plea agreement. The strongest victims' rights legislation has been enacted by the State of Arizona, which entitles the victims of a crime to express their views personally at the plea hearing. However, the Arizona legislation explicitly states that the victim does not have the right to veto a proposed plea bargain.

Although the legislative reforms enacted in the United States appear to have substantially enhanced the rights of crime victims during the plea negotiation process, it is nevertheless important to note that, in certain jurisdictions, there is a real question as to the effectiveness of these rights. For example, the legislation does not always make it clear which criminal justice officials are to be held responsible for ensuring that victims are given adequate notification concerning their case. Research conducted in the United States has indicated that the failure to hold specific officials responsible for conveying information to victims has resulted in a situation in which up to 50% of victims are not provided with the necessary information concerning plea bargains. In this respect, it is critical to note that empirical studies have found that, when victims are appropriately notified, they are more likely to be satisfied with the criminal justice system and with the outcome of their cases.

Canadian Initiatives

Provincial Legislation

All of the provinces and territories in Canada have enacted some form of victims' rights legislation. Most of the relevant statutes make provision for crime victims to be kept informed of the status of their cases during the criminal justice process. However, only two provincial statutes (Ontario and Manitoba) specifically address the rights of a victim to receive information about plea negotiations. In recent legislation, Manitoba has taken the unprecedented step of granting victims the right to be consulted about various aspects of the prosecution of their cases, including "any agreement relating to a disposition of the charge."

In most Canadian jurisdictions, the relevant legislation simply exhorts criminal justice officials to make information available to crime victims, without imposing a specific duty to do so. Furthermore, many of the rights accorded by the legislation are subject to numerous restrictions that leave prosecutors with a considerable degree of discretion whether or not to furnish victims with information that is pertinent to their cases.

Federal Legislation

The most significant legislative initiative, which the Parliament of Canada has taken in relation to victims' rights, is the recognition of the right to submit victim—impact statements to the trial courts. Clearly, the relevant amendments to the Criminal Code have accorded victims a right to participate in court proceedings in a manner that permits them to articulate the nature of the harm that they have suffered as a result of the crimes committed against them. However, the impact of this particular right is substantially diminished by the fact that up to 90% of criminal cases are resolved through the acceptance of guilty pleas, many of which are the result of plea negotiations. In the absence of specific provisions in the Criminal Code that provide for the judicial regulation of plea negotiations, the victims of crime are completely excluded from this critical stage of the criminal process. This oversight has significant implications for victims' rights since the plea bargaining process may well determine the nature of the charges that are ultimately laid against the accused and thereby exert a significant degree of influence over the nature and scope of the trial judge's sentencing discretion.

Plea Bargaining In Canada

Introduction

A simple definition of plea bargaining is provided by the Law Reform Commission of Canada, which states that a "plea agreement" constitutes "an agreement by the accused to plead guilty in return for the prosecutor's agreeing to take or refrain from taking a particular course of action." More specifically, three categories of plea bargaining may be identified: (1) Charge bargaining, which involves promises concerning the nature of the charges to be laid; (2) Sentence bargaining, which involves promises relating to the ultimate sentence that may be meted out by the court; and (3) Fact bargaining, which involves promises concerning the facts that the Crown may bring to the attention of the trial judge.

The Judicial Response

Until relatively recently, the practice of plea bargaining was "frowned upon" and most criminal justice personnel were loath to admit that it took place at all. However, during the past 15 years, there has been a dramatic shift in attitude. Both the Canadian Sentencing Commission (1987) and the Law Reform Commission of Canada (1989) recommended that the practice become more transparent and ultimately subject to judicial regulation. Furthermore, in Burlingham (1995), the Supreme Court of Canada recognized the plea bargain as "an integral element of the Canadian criminal justice process."

A strong sign of the degree to which plea bargaining has now become entrenched as a legitimate element in the criminal justice process is the clearly articulated willingness of Canadian courts to endorse the joint—sentence submissions that are advanced by Crown and defence counsel.

The lack of a formal process for plea bargaining in Canada

In spite of the fact that the judiciary has overtly endorsed the practice of plea bargaining, Canada still has not established a formal process by means of which trial courts are required to scrutinize the contents of a plea bargain and to ensure that there is adequate protection for the rights and interests of all the affected parties. Three negative consequences have been identified as flowing from this situation. First, the failure to formally recognize plea bargaining means that criminal justice officials cannot be held accountable for their actions in relation to this critical criminal justice practice: in particular, accused persons do not have a process by which they can ensure that the Crown fulfills the promises offered in a plea agreement. Second, the rights of the accused are not fully protected because, at the present time, the judiciary is under no obligation to inquire as to whether or not an accused person entered a guilty plea in a voluntary manner and with full knowledge and understanding of the consequences of such agreement [Bill C—15A, currently being considered by the Parliament of Canada, would remedy this particular problem]. Third, the failure to formalize the practice of plea bargaining effectively excludes victims from participation in this critical phase of the criminal justice system.

Federal Rule 11: A Viable Legal Framework for the Regulation of Plea Bargaining?

The Legitimization of Plea Bargaining in the United States

In Santobello v. New York (1971), the Supreme Court of the United States recognized the constitutionality of plea bargaining and the practice has become firmly entrenched in both state and federal courts. At least 90% of criminal cases in the United States are decided on the basis of guilty pleas, most of which are the outcome of a plea bargain. However, the distinctive characteristic of plea bargaining in the United States rests in the fact that it is subject to overt judicial regulation.

The Implementation of Federal Rule 11

In the federal courts, the practice of plea bargaining is regulated by the provisions of Rule 11 of the Federal Rules of Criminal Procedure. Under Rule 11, the courts have a duty to discuss the consequences of a guilty plea with the accused in open court and to ensure that the accused has entered a guilty plea voluntarily and with a full understanding of the consequences of such agreement. Most significantly, if there has been a plea agreement, its contents must be disclosed in open court and the trial judge has the power to accept or reject it. There are three types of promises that the prosecutor can offer an accused person:

1. Move for dismissal of other charges; or
2. Make a recommendation, or agree not to oppose the defendant's request, for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court; or
3. Agree that a specific sentence is the appropriate disposition of the case.

It is important to note that a "Type B" plea bargain is not binding on the trial court and that the accused person has no absolute right to withdraw the guilty plea. Nevertheless, it appears that — in practice — the courts routinely implement the non—binding sentence recommendations contained in a "Type B" plea agreement. "Type C" agreements are not encouraged because judges are reluctant to endorse restrictions on the scope of their sentencing discretion.

Federal Rule 11 and the United States Sentencing Guidelines

It is critical to appreciate that the guilty—plea provisions enshrined in Rule 11 must be examined in the context of the United States Sentencing Guidelines. These guidelines were designed to limit the extent of sentencing disparity by means of the legislative device of establishing limited ranges of sentencing discretion that are closely tied to the specific charges of which the accused are convicted. Under the terms of the Guidelines, trial judges are placed under a duty to examine whether or not a plea agreement adequately reflects the seriousness of the offence and whether the charges are compatible with what actually happened during the commission of the offence. In the event that such scrutiny reveals that a more serious offence has occurred than that which is reflected in the plea agreement, then the trial judge must apply the sentencing guideline that is applicable to the more serious offence. Moreover, the Guidelines stipulate that judges must review the pre—sentence report before rejecting or accepting a plea bargain. Finally, in cases where judges depart from the Guidelines, judges have the duty to justify and explain such a departure from the "normal" sentencing range.

Empirical Research: Plea Bargaining and Sentencing Guidelines in the Federal Court System of the United States

It is not entirely clear what the impact of the Sentencing Guidelines has been on sentencing practices in the federal courts. It appears that, overall, sentencing disparity has been reduced: however, empirical research suggests that there still remain significant differences in the sentencing patterns of individual trial judges and of individual District Courts in different geographical areas. Of particular interest is the impact that the Sentencing Guidelines have had upon the process of plea bargaining: in this respect, it appears that the Guidelines have – to a certain extent — diminished the benefits of entering a guilty plea. For example, one empirical study suggests that offenders who enter in a plea bargain today can reasonably expect a 20% reduction in their sentence, whereas they might have expected a 30 to 40% reduction in the period before the implementation of the Guidelines. In spite of this development, plea bargaining rates have not been significantly reduced by the application of the Guidelines by the federal courts. However, it is possible that the precise nature of plea bargaining may have been transformed by the advent of the Guidelines.

Finally, empirical research suggests that prosecutors may effectively circumvent the intent of the Guidelines by engaging in, what has been termed, precharging charge bargaining – a practice which occurs before charges are filed. In this respect, the unintended consequence of limiting the scope of judicial sentencing discretion through the implementation of the Sentencing Guidelines may well have been to increase the scope of prosecutorial discretion in the period before charges are laid.

Federal Rule 11: Tentative Conclusions

There is little doubt that Federal Rule 11 has created a legal mechanism that permits the overt judicial regulation of plea bargaining, while simultaneously permitting the practice to flourish. However, it is of critical importance to note that Federal Rule 11 must be evaluated in conjunction with the U.S. Sentencing Guidelines. Although the Guidelines have not caused any significant variations in the absolute rates of plea bargaining in the federal court system, it nevertheless appears that the nature of plea bargaining may — to some extent – be undergoing a process of transformation and that prosecutors and defence lawyers have started to develop strategies that are designed to avoid the full impact of legislative provisions that are intended to reduce their ability to determine the outcome of the sentencing process. It is also important to note that Federal Rule 11 makes no provision for the victim to participate in the formal hearing that is conducted by the trial judge when receiving a plea of guilty by the accused. Therefore, Federal Rule 11 does not per se constitute a viable model for achieving victim participation in the plea negotiation process, although it certainly establishes an effective model for the judicial regulation of this process.

Victim Participation in the Criminal Justice System: The Precedent of Victim Impact Statements in the Sentencing Process

In Canada, making provision for the participation of victims in the plea bargaining process would constitute a leap into uncharted waters. However, by examining the Canadian experience with the use of victim—impact statements, it may be possible to estimate the potential impact of implementing such a significant reform to the criminal justice process.

Are Victim Impact Statements a Vehicle for Revenge?

Victim—impact statements constitute a vehicle by means of which victims may be accorded a meaningful role in the sentencing process. In particular, they furnish victims with the opportunity to articulate the nature and extent of the harm that has been caused by the commission of the crime(s) of which the accused has been convicted. Consequently, some victim—impact statements convey powerful and moving stories about the effects of the crime(s) upon the victim. Some critics have asserted stated that victim—impact statements serve as a vehicle for revenge and have raised the concern that an increased degree of victim participation may produce a courtroom environment in which raw "emotion" overwhelms prudent "reason". Nevertheless, a critical analysis of Canadian court cases reveals that, while judges accept retribution as a valid sentencing goal, they have clearly differentiated it from revenge. The appropriate use of victim—impact statements is, therefore, not to facilitate the objective of revenge but rather to ensure that the ultimate sentence is "commensurate" with the degree of harm inflicted on the victim(s) concerned. In this sense, it could be hypothesized that the participation of victims in the plea negotiation process would not be designed to establish a platform for vengeful prosecution but rather to provide potentially valuable information to the court that is charged with the task of deciding whether to accept or reject a proposed plea agreement.

The Influence of Victim—Impact Statements on the Sentencing Process: The Emerging Canadian Jurisprudence

It is clear that the Canadian judiciary has been careful to affirm that victim—impact statements should not play a direct role in determining the nature or quantum of a sentence that is given to a convicted person. However, it appears that the victim—impact statement is frequently identified in the case law as being one of many factors that are taken into consideration by trial judges when they make their sentencing decisions. Furthermore, appellate courts have proved themselves to be willing to set aside sentences in those cases where the judge has completely failed to take into consideration the contents of a victim—impact statement. Based on current judicial views as to the appropriate use of victim—impact statements, it would appear that there would be no support for the suggestion that victims should have a right to veto plea bargains: however, it would appear that victims could provide valuable information to the trial judge who is charged with deciding whether or not to accept a proposed plea agreement.

Who is the Victim?

In Canada, the definition of the term, "victim," has – where appropriate — been expanded to include family members and care givers. There is no reason why the current Criminal Code definition of "victim" – for the purpose of identifying who is eligible to submit a victim—impact statement – should not also be used in the context of victim participation in plea bargaining hearings.

Victim Satisfaction, Victim Participation and The Empirical Research

The benefits of increased victim participation during the sentencing process, through the use of victim—impact statements, have been numerous. For example, victim—impact statements can provide judges with in—depth information that can significantly assist them in reaching an appropriate sentencing decision. Additionally, victim—impact statements may potentially provide a vehicle by means of which victims can ventilate their feelings — a human process that may be important during the healing process.

It has frequently been asserted in the scholarly literature that an increased degree of participation in court proceedings may increase the levels of victim satisfaction with the ultimate disposition of a particular case and with the criminal justice system in general. However, although there is strong evidence to suggest that increased participation in the criminal justice system does indeed lead to increased victim satisfaction, the research studies conducted to date have not been entirely conclusive on this issue.

Conclusions: Four Models of Victim Participation in Plea Bargaining

It appears that, in the future, it is likely that reform efforts will focus upon the task of expanding victim rights during plea negotiations. In Canada, the first step toward this goal would be legislation that ensures that victims are informed in a timely manner concerning the progress of any plea negotiations that may be taking place – a step already in place in Ontario and Manitoba. In addition, this first step would entrench the victim's right to be to be consulted by Crown counsel about decisions that are made in relation to the prosecution of his or her case (an initiative that has recently been undertaken in the province of Manitoba with the enactment of the Victims' Bill of Rights in 2000).

The second step in the expansion of victims' rights in relation to plea bargaining would be to introduce a variation of the system that has been established by legislation in Arizona – namely, a system in which victims are granted the right to make oral or written submissions to a formal judicial hearing, that is convened for the specific purpose of accepting or rejecting a proposed plea agreement.

In essence, this report suggests that it is possible to identify four models of victim participation in plea negotiations.

Model 1

• The victim has the right to request basic information about the prosecution of his or her case.
• The onus is on the victim to request such information.
• The victim is not provided with any specific information concerning plea discussions.
• This model reflects the existing law and practice in most Canadian jurisdictions.

Model 2

• The victim has the right to information that is incorporated within Model One.
• The victim has the right to request specific information about any ongoing plea discussions.
• Crown counsel has a duty to consult with the victim about the terms of any proposed agreement.
• This model reflects the legislative framework established by the recently enacted Manitoba Victims' Bill of Rights (2000).

Model 3

• The victim has the rights outlined in model two.
• The trial judge must consider any proposed plea agreement in an open hearing.
• The trial judge has the power to accept or reject any proposed plea agreement.
• The victim has the right to make a written or oral submission to the judge during the plea—bargaining hearing.
• The trial judge must receive a pre—sentence report from an independent agency before accepting or rejecting a plea agreement.
• The prosecutor is placed under a duty to inform the court as to what efforts have been made to inform the victim of his or her right to participate in the plea—bargaining hearing and to convey to the court the victims' views (if any) concerning any proposed plea agreement.
• This model closely reflects the existing jurisprudence and practice in the State of Arizona, although many of its elements are also contained in the jurisprudence and practice of the federal courts of the United States.

Model 4

• As in Model 3, the victim has the rights to information, consultation, and participation in an open judicial hearing.
• The victim has the right to veto a proposed plea agreement.
• This model is hypothetical insofar as no jurisdiction in North America has granted victims the right to veto a proposed plea agreement.

These four models serve as a basis for understanding the nature and content of contemporary jurisprudence and practice in Canada and the United States. Furthermore, the models may be used as a means of clarifying potential avenues of reform in Canada. It is recommended that Model 3 be adopted in Canada. Implementation of this model will require not only action by Parliament to amend the Criminal Code but also legislative action by the various provinces and territories to entrench victims' rights to information and consultation.

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