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The Federal Prosecution Service DESKBOOK

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Part V
PROCEEDINGS AT TRIAL AND ON APPEAL
Chapter 20

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20 PLEA AND SENTENCE DISCUSSIONS AND ISSUE RESOLUTION

20.1 Introduction

Discussions between Crown and defence counsel which are intended to lead to a narrowing of the issues at trial, or which may avoid unnecessary litigation altogether, form an important and necessary part of the criminal justice system¹. Discussions of this nature will be referred to throughout this chapter as “resolution discussions²”. Though not defined in the Criminal Code, resolution discussions embrace several practices: which charges an accused may plead guilty to, how the case may proceed, what an appropriate sentence might be, what the facts of the offence are for the purposes of a guilty plea, and, if the case is to proceed to trial, how the issues might be narrowed so as to expedite the trial. Counsel are to make their best efforts to reach agreements on such issues as soon as possible. It must be emphasized, however, that any recommendations made to the court as part of a plea or sentence discussion are subject to the overriding discretion of the court to accept or reject any submission by counsel³.

20.2 Statement of Policy

Crown counsel's approach to resolution discussions must be based on several important principles: fairness, openness, accuracy, non-discrimination and the public interest in the effective and consistent enforcement of the criminal law.

Crown counsel may participate in resolution discussions where:

• the case meets the charge approval standard set out in Part V, Chapter 15, “The Decision to Prosecute”;
• the accused is willing to acknowledge guilt unequivocally; and
• the consent of the accused to plead guilty is both voluntary and informed

Because of the importance of such discussions, Crown counsel should keep a record in respect of any offers made, or agreements reached.

20.3 Guidelines for Application of the Policy

Resolution discussion practices will vary from jurisdiction to jurisdiction. The following guidelines are not designed to require a set form. Instead, they are intended to give Crown counsel some guidance as to how to engage in meaningful discussions.

20.3.1 Charge Discussions

Charge discussions may properly include the following:

• reducing a charge to a lesser or included offence⁴;
• withdrawing or staying other charges;
• agreeing not to proceed on a charge or agreeing to stay or withdraw charges against others (for example, friends or family of the accused, or individual corporate officers);
• agreeing to reduce multiple charges to one all-inclusive charge (where permitted by law); and
• agreeing to stay certain counts and proceed on others, and to rely on the material facts that supported the stayed counts as aggravating factors for sentencing purposes⁵. (This may not be done, however, where the counts to be stayed are serious charges unrelated to the charges for which guilty pleas are entered⁶.)

The following practices are not acceptable:

• instructing or proceeding with unnecessary additional charges to secure a negotiated plea;
• agreeing to a plea of guilty to an offence not disclosed by the evidence; or
• agreeing to a plea of guilty to a charge that inadequately reflects the gravity of the accused's provable conduct unless, in exceptional circumstances, the plea is justifiable in terms of the benefit that will accrue to the administration of justice, the protection of society, or the protection of the accused.

20.3.2 Procedural Discussions

Procedural discussions may properly include the following:

• agreeing to proceed summarily instead of by indictment;
• agreeing to dispose of the case at a specified future date if, on the record and in open court, the accused is prepared to waive the right to a trial within a reasonable time; and
• agreeing to the waiver of charges to or from a particular province or territory, or to or from a particular jurisdiction in a province or territory.⁷

20.3.3 Sentence Discussions

20.3.3.1 Scope of Sentence Discussions

Sentence discussions may properly include the following:

• a recommendation by Crown counsel for a certain range of sentence or for a specific sentence;
• a joint recommendation for a range of sentence or for a specific sentence;
• an agreement by Crown counsel not to oppose a sentence recommendation by defence counsel which has been disclosed in advance⁸;
• an agreement by Crown counsel not to seek additional optional sentencing measures (for example, prohibition orders, preventive detention, forfeiture). However, Crown counsel cannot negotiate sentencing measures which apply by operation of law⁹;
• an agreement by Crown counsel not to seek more severe punishment by proceeding with a Notice of Intention to Seek Greater Punishment¹⁰;
• agreement by Crown counsel not to oppose the imposition of an intermittent sentence rather than a continuous sentence; and
• the type of conditions to be imposed on a conditional sentence.

The following practice is not acceptable:

• a promise in advance not to appeal the sentence imposed at trial.

20.3.3.2 Conduct of Sentence Discussions¹¹

The following principles should inform Crown counsel’s approach to sentence negotiation:

• Because of the benefits that flow to the administration of justice from early guilty pleas, the Crown should make its best offer to the accused as soon as practicable¹². Absent a significant change in circumstances, the offer should not be repeated at later points in the process¹³.
• Crown counsel should initiate, as well as respond to, plea discussions;
• Crown counsel who conduct sentence negotiations shall have full authority to enter into binding agreements¹⁴;
• FPS Directors shall ensure that counsel are made available to conduct plea and sentence discussions; this may include, for example, the court where accused persons make their first appearance; and
• Where an accused changes counsel, Crown counsel should advise the new counsel of previous offers and our present position.
• Before recommending that a fine be imposed, Crown counsel should take every reasonable measure to ensure that the fine is an appropriate disposition, which will necessarily include forming an opinion as to whether an offender is capable of paying the fine. Where possible, Crown counsel should, as part of the negotiations for resolving the file by way of a fine, arrange with the defence for the payment of the fine on the day of sentencing; if the money to pay is not immediately available, but will be in the near future, Crown counsel should seek to have the sentencing proceedings take place on that day.

20.3.4 Agreements as to the Facts of the Offence

Where an accused decides to plead guilty, Crown counsel should agree to put before the court those facts that could have been proved by admissible evidence if the matter went to trial. Discussions regarding the facts may properly include the following:

• agreeing not to include in representations to the court embarrassing facts which are of little or no significance to the charge; and
• agreeing to rely on an agreed statement of facts.

The following practices are not acceptable:

• an agreement respecting facts which results in or gives the appearance of misleading the court, such as:  
  1. an agreement not to advise the court of any part of the accused's provable criminal record which is relevant or could assist the court;
  2. an agreement not to advise the court of the extent of the injury or damages suffered by a victim;
  3. an agreement to withhold from the court facts that are provable, relevant, and that aggravate the offence; or
  4. an agreement to outline facts to the court which, when measured against the essential elements of the offence to which the accused has pleaded guilty, would cause the presiding judge to reject the plea in favour of a plea of not guilty.

20.3.5 Pre-Trial Conferences¹⁵

Pursuant to s. 625.1(2) of the Criminal Code, pre-trial conference are mandatory for cases in which a jury trial is to take place. Pre-trial conferences may also take place in trials to be conducted by a judge or justice alone, pursuant to s. 625.1(1). A system of judicially-supervised pre-trials now exists in many jurisdictions.

Judicially supervised pre-trial conferences are now an entrenched and important facet of our criminal justice system. They are effective not only for encouraging fair dispositions of cases without trial, but also for narrowing the issues in cases that do proceed to trial. Crown counsel are encouraged to take whatever steps are reasonably possible to ensure that such conferences run smoothly which may include:

• ensuring that sufficient disclosure has been made to defence counsel prior to the pre-trial conference;
• meeting with defence counsel prior to the pre-trial conference;
• attempting to secure the attendance of an investigator on the case, where such attendance would be useful or necessary;
• initiating steps with court administrators for the holding of a pre-trial conference, where the court has not done so; and
• identifying before the pre-trial conference those areas in which agreements can be reached on issues which would shorten the proceedings.

20.3.5.1 Narrowing the Trial Issues

For cases that are proceeding to trial, it is incumbent on Crown counsel to attempt to narrow the issues to be litigated as much as possible. Towards this end, Crown counsel should:

• identify any legal issues that may arise and seek the defence’s position on those issues;
• more particularly, identify those issues from which defence counsel might make admissions, such as voir dires on the admissibility of statements¹⁶; and
• identify witnesses whose evidence may not be necessary, so that unnecessary subpoenas are not issued.

20.3.6 Unrepresented Accused

Plea or sentence negotiations with an unrepresented accused call for extreme care. In general, Crown counsel should not initiate negotiations with an unrepresented accused; if approached by an accused, however, counsel may negotiate in accordance with this policy. It is essential that any such discussions proceed only where it is clear that the accused is acting voluntarily¹⁷. Pursuant to s. 606 (1.1) of the Criminal Code, a court must be satisfied that pleas of guilty are made voluntarily and understood by accused persons.

Crown counsel should first encourage the accused to retain counsel and, where appropriate, advise the accused of the availability of legal aid. If the accused declines to retain counsel, Crown counsel should generally arrange for a third person to be present during discussions because of the need to maintain an arms-length relationship with the accused. A detailed record should be kept of all discussions. In most instances, a written agreement or written evidence of an agreement¹⁸ will be appropriate. When the case is disposed of in accordance with a negotiated plea or sentence agreement, Crown counsel should tell the judge about the existence of the agreement and that the accused was encouraged to retain counsel but declined to do so.

Crown counsel should not conduct plea or sentence discussions with an unrepresented accused unless satisfied that the accused has been given full disclosure or is aware of the right to full disclosure¹⁹.

20.3.7 Accuracy

Crown counsel should maintain a complete record of all plea and sentence discussions or agreements on the file. This will promote a consistent and informed practice.

20.3.8 Openness and Fairness

The general principles of openness and fairness apply to all forms of discussions referred to above. Both principles are explained here.

20.3.8.1 Openness

Crown counsel should, where reasonably possible, solicit and weigh the views of those involved in the Crown's case -- in particular, the victim (where there is one) and the investigating agency. However, after consultation, the final responsibility for assessing the appropriateness of a plea agreement rests with Crown counsel²⁰. If a plea agreement is reached, counsel should try to ensure that victims and investigating agencies understand the substance of the agreement and the reasoning behind it. The scope of this discussion may, in unusual circumstances, have to be limited by privacy or secrecy considerations in the accused's interest or in the general public interest.

Where a plea or sentence agreement has been reached, counsel should present the proposal to the trial judge in open court and on the record. In certain circumstances, it may be necessary to discuss some aspects of the agreement with the trial judge privately. This should be done only in rare and compelling situations involving facts which in the interest of the public or the accused ought not to be disclosed publicly. Common examples include cases where the accused is terminally ill, or has acted as a confidential informer for the police.²¹ It is not acceptable, however, to discuss a plea agreement privately with the trial judge in advance of the hearing to determine the court's reaction to it.²² This does not, however, prevent counsel's participation in a pre-trial conference conducted under section 625.1 of the Criminal Code. Counsel may conduct sentence proceedings before the judge who presides over the pre-trial conference.

20.3.8.2 Fairness

All negotiated plea or sentence agreements should be honoured by the Crown unless fulfilling the agreement would clearly be contrary to the public interest. For example, Crown counsel must not proceed with an agreement if counsel has reason to believe that the criteria set out in Part V, Chapter 15, “The Decision to Prosecute” have not been met. Additionally, Crown counsel may be justified in refusing to fulfil an agreement if misled about material facts. The decision not to fulfil an agreement should only be made after consultation with, and approval of, the Senior Regional Director.

As well, if counsel disagrees with an agreement earlier reached by a colleague²³, the matter should be referred to the FPS Director or Senior Regional Director, if the matter cannot be resolved between colleagues.

If an accused enters a plea based on a negotiated plea or sentence agreement and the court disposes of the case on those terms, no appeal may be undertaken unless exceptional circumstances exist²⁴ and the Senior Regional Director authorizes the appeal after consultation with the Assistant Deputy Attorney General (Criminal Law).

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Date Modified:

2008-12-24