The International Cooperation Group

CRITICISMS OF THE PRACTICE

Plea negotiation has been a controversial subject among members of the judiciary, the practicing bar, law enforcement agencies and the academic community[15]. The primary criticism of the practice is that it subverts many of the values of the criminal justice system, such as those entrenched in the Canadian Charter of Rights and Freedoms, by allowing the circumvention of the rigorous standards of due process and proof imposed during criminal trials[16]. Detractors further tend to characterise the plea negotiation process as unnecessary and degrading to the criminal justice system. In particular, the process has been criticised as being, or appearing to be, an irrational, unfair and secretive practice that facilitates the manipulation of the system and the compromise of fundamental principles[17]. Another criticism of the concept of plea bargaining is that it allows offenders to receive lenient sentences. The concern about this result is that the practice undermines the deterrent effect of criminal sanctions and perpetuates the image that offenders can evade the law, provided they are willing to bargain. This concern is exacerbated by the significant differences that may sometimes exist between the sentences imposed after guilty pleas and those imposed after trials.

The most serious concern with the plea-bargaining process relates to the possibility that an accused who is in fact innocent will be induced to plead guilty. While it is a requirement of law that an accused admit his guilt before a court accepts a plea[18], other pressures may frustrate this principle.

Every person charged with a criminal offence has the constitutionally protected right to a legal counsel under the Charter of Rights and Freedoms[19]. The duty of defence counsel in a criminal proceeding is to protect the client as far as possible from being convicted except by a court of competent jurisdiction and upon legal evidence sufficient to support a conviction for the offence with which the client is charged[20]. But in spite of this duty, the possibility exists that an accused will be pressured by his counsel to plead guilty to a crime, even though he may be factually or legally not guilty. Some accused are vulnerable and often rely heavily on the advice of their lawyer. Defence counsel is obligated to take instructions from his client[21], but this obligation is not always observed. In some cases, defence counsel may make all the decisions and compel a client to act in a manner that is inconsistent with the intentions of the latter. There may also be economic demands on the defence counsel to be financially efficient in order to survive professionally. In that perspective, it is easier and more lucrative to plead a high volume of clients guilty than it is to litigate every case. Furthermore, a great deal of a defence counsel’s professional success depends on the working relationships established with the police, prosecutors and judges. Accordingly, defence counsel may sometimes be inclined to improperly balance his own personal interests against the best interests of his client. Pleading an innocent client guilty in order to maintain good relations with state officials, although unethical, may be a sacrifice that some defence counsel are willing to make.

Other pressures that an accused may face come from the actions of state officials. The power of the state to determine what offence someone will be prosecuted for can provide a broad range of options for officials. For example, the police may overcharge an accused or the prosecutor may threaten to pursue the most severe penalty if the accused decides to proceed to trial[22]. The harsher sanctions associated with a conviction after trial may provide a prosecutor with significant power to bring an accused to plead guilty. As a result, there is a real concern that people will plead guilty to crimes they did not commit, or for which they have a defence, in order to avoid the risk of a substantially harsher punishment after trial. A troubling example of this result is to be found in the correlation between arguably wrongful guilty pleas and mandatory minimum sentences in cases of murder[23]. In 1997, a judge reviewed cases involving the convictions of women who were imprisoned for spousal homicide in circumstances that raised the possibility of invoking self-defence or the "battered woman" defence[24]. In her report, the judge acknowledged the pressure placed on women to plead guilty to manslaughter to avoid a mandatory life sentence for murder despite an available defence :

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