DATE: August 4, 2015
COMMENTS: This Guideline provides advice and direction to prosecutors in relation to the exercise of discretion in negotiated resolutions. It replaces the Disposition Agreements between Crown and Defence Guideline dated November 28, 2006.
Resolution negotiations are a vital exercise of prosecutorial discretion. Principled and effective resolutions benefit all participants in the criminal justice system.
…to the extent that the plea bargain is an integral element of the Canadian criminal process, the Crown and its officers engaged in the plea bargaining process must act honourably and forthrightly.
Negotiated resolutions are a form of dispute resolution that contributes to the overall healthy function and efficiency of the criminal justice system. Charges resolved without trial, or the focusing of issues before the court, reduces unnecessary litigation, system delays, inconvenience to victims and witnesses, and overall public expense.
Crown prosecutors and defence counsel (or the accused) may attempt to resolve any issue arising within a prosecution including the following:
- Procedural decisions such as Crown elections on hybrid offences or the waiver of charges within the jurisdiction;
- Arriving at an agreed statement of facts;
- The agreement to narrow issues to focus a hearing;
- Determining what charge(s) to accept a guilty plea to and what charge(s) to withdraw or stay;
- Accepting a guilty plea to a lesser offence; and
- Determining an appropriate sentence.
The approach to any resolution will be determined by the nature and facts of each individual case. This Guideline is not intended as a formula for negotiating resolutions but as a practical guide to enable Crown prosecutors to exercise their discretion with confidence during this process.
Subject to this Guideline, the negotiated resolution of criminal charges, or issues in a trial, is an appropriate exercise of prosecutorial discretion. Prosecutors will be supported when making principled, merit based resolutions that are conducted in a manner consistent with the documents in the Crown Prosecutors’ Manual. All negotiated resolutions must be consistent with existing policies relating to particular criminal conduct (e.g. Domestic Violence Guideline).
Resolution discussions further the fair and efficient administration of justice. Prosecutors are strongly encouraged to initiate and participate in resolution discussions, on any issue that arises in a prosecution, at the earliest opportunity. Where possible, prosecutors should enter into early case resolution discussions in accordance with the Early Case Resolution Guideline.
In conducting negotiations, prosecutors must balance the public interest with the rights of the accused. In exercising this discretion, prosecutors must conduct negotiations with overriding fairness, consistency, flexibility, and transparency as set out in the Decision to Prosecute Guideline. The prosecution's duty to disclose will ordinarily be triggered by a request from the accused's counsel. Crown prosecutors may presume that counsel for the accused will request disclosure prior entering into early case resolution discussions. Special steps ought to be taken to ensure that an unrepresented accused is advised that disclosure materials are available upon request. (See the Disclosure by the Prosecution Guideline).
In the process of negotiating a resolution, the interests of victims should be considered. Prosecutors must be familiar with the responsibilities that are set out in the Victims of Crime Guideline and the Victims of Crime Protocol.
Negotiated resolutions must not compromise the public confidence in the integrity of the administration of justice. Where a resolution in the public interest cannot be achieved, prosecutors will be supported in their decision to proceed with litigation. Expediency alone should never determine the outcome of any resolution. The avoidance of a trial does not justify the reduction, withdrawal or staying of charges where there is a reasonable likelihood of conviction on the original charges and it is in the public interest to proceed with the charges as laid.
There are aspects of a prosecution that cannot be part of a negotiated resolution such as the right to appeal and the decision to seek a Dangerous Offender/Long Term Offender Designation.
Absent exceptional circumstances, prosecutors must honour all negotiated resolutions.
Charge and Plea Negotiations
The decision to proceed with charges as laid or accept pleas to reduced charges is governed by the criteria respecting the sufficiency of the evidence and the public interest, as set out in The Decision to Prosecute Guideline. Where multiple charges arise from the same circumstances, a prosecutor may withdraw or stay surplus charges that are wholly or substantially addressed by the charges to which guilty pleas have been or will be entered.
Resolution negotiations may be entered into on offences that meet the prosecution standard. This includes:
- The decision to proceed with charges or accept guilty pleas to a lesser or included offence;
- Withdrawing charges or staying proceedings;
- An agreement to divert of charges to an eligible program prior to disposition; and
- Consolidating charges (withdrawing some while proceeding on other or amended charges) for a global resolution.
When entering into resolution negotiations prosecutors are encouraged to consider the following relevant principles:
- A guilty plea cannot be accepted to charges where the prosecutor knowingly cannot meet the prosecution standard on any material element of an offence unless that fact is fully disclosed to the accused and they are prepared to make the necessary admissions to support the guilty plea;
- The accused must be prepared to accept factual and legal guilt to the proposed charges;
- A guilty plea cannot be accepted when the accused asserts his or her innocence to the charge;
- The charges proceeded on should appropriately represent the seriousness of the provable charge(s) and the moral culpability of the accused;
- The prosecutor should not negotiate to a lesser or included offence to simply avoid a mandatory minimum penalty;
- The charges proceeded on provide for an appropriate range for a fit sentence in the circumstances of the case;
- Closely related charges may be dealt with by a single guilty plea even if they do not fall strictly within the rule against multiple convictions;
- In determining the charges to proceed with the merits of ensuring specific charges are reflected on the criminal record of an accused should be considered. For example, the significance of reflecting breaches of court orders for repeat offenders; and
- A decision to withdraw charges or stay proceedings must be consistent with the principles set out in the Terminating Proceedings Guideline.
Negotiating the Facts
It is improper to withhold or agree to withhold any material, factual information, or evidence, including the accused person’s criminal record, from the court in exchange for a plea of guilty from the accused (see the Code of Conduct). The court accepting the pleas must be apprised of all the facts if it is to effectively discharge its responsibility to the community in passing sentence. A fair and objective assessment of the provable facts is crucial to any resolution. If an accused decides to plead guilty, the facts agreed upon should comprehensively reflect the elements of the offence(s) and the culpability of the accused. Where appropriate, the use of a statement of agreed facts within a hearing or trial to address the narrative and/or certain elements of the offence(s) can be effective in focusing the issues in dispute and enhance procedural efficiency. The following principles guide negotiations on the facts of a case:
- Provable, relevant, aggravating circumstances to an offence should not be withheld from the court. This includes relevant entries on the criminal record of the accused and material injuries or damages incurred by victims;
- For serious offences against the person and other serious and complex files, prosecutors are strongly encouraged to negotiate an agreed statement of facts with defence counsel prior to entering any guilty pleas on the record; and
- Where counsel cannot agree upon certain aggravating or mitigating facts the parties should enter into a sentence hearing for judicial determination of the facts in dispute pursuant to section 724(3) of the Criminal Code.
One of the most challenging parts of resolution discussions is arriving at a fair, just position on sentence. The following principles apply to potential sentence discussions:
- It is important that the Crown’s position on sentence reflects the significance and distinction of a truly early guilty plea;
- Sentence positions should accurately reflect the gravity of the offence and the moral culpability of the accused. The prosecution’s position on sentence should be consistent with current sentencing ranges and case law guidelines, where applicable;
- Consideration of the appropriateness of a conditional sentence should be consistent with the factors set out in the Conditional Sentences Practice Protocol;
- In determining whether an intermittent sentence is in the public interest, prosecutors should review the Prosecution Pointer # 14: Intermittent Sentences;
- A joint submission on sentence must be fit, reasonable, and consistent with the public interest. Prosecutors are expected to provide the court comprehensive reasons and legal analysis in support of joint recommendations on sentence; and
- It is not an appropriate exercise of prosecutorial discretion to withdraw criminal charges in exchange for a donation to a charitable or other organization, unless the donation is part of an established alternative measures program.
The following procedural decisions may be subject to negotiation:
- Waiving charges to or from another jurisdiction;
- An agreement to specify a future date and time for the disposition of charges where the circumstances justify and the accused is prepared to waive any right to trial within a reasonable time;
- Defence requests for re-election (Defence Re-Election Requests Guideline); and
- Whether to proceed summarily or by indictment.
Elections on Hybrid Offences
The decision to elect to proceed by indictment or by summary conviction on dual procedure offences is an important exercise of Crown discretion. It is important to identify the appropriate election that will best serve the public interest. An election to proceed summarily may result in more expeditious proceedings and require fewer resources. Conversely, an election to proceed summarily may not adequately reflect the gravity of the offence or provide for a fit range of sentence.
Prosecutors must determine whether the advantages of proceeding summarily are outweighed by the overriding public interest in proceeding by Indictment. In attempting to balance the public interest with the circumstances of the accused, prosecutors are encouraged to consider the public interest factors set out in the Decision to Prosecute Guideline, including the following:
- The circumstances and seriousness of the facts alleged;
- Whether the sentence range available on summary conviction would constitute a just and fit sentence;
- Where an election would result in a specific mandatory minimum penalty, there should be assessment of whether the provable facts warrant the resulting penalty;
- The availability of and the impact to victims and witnesses for having to potentially testify twice;
- The moral culpability of the accused;
- The age, maturity, mental health, and general background of the accused; and
- Any additional circumstances of the accused, including any criminal record and outstanding charges.
Where it is assessed that an election by summary proceeding is appropriate but the limitation period has expired, prosecutors are encouraged to consider the following factors before proceeding by indictment:
- Did the actions of the accused contribute to the delay?
- Would the accused consent to proceed by summary conviction pursuant to s. 786(2) of the Criminal Code?
- Was law enforcement diligent in conducting the investigation? Consideration should be given to the complexity of the case and when the allegations came to the attention of law enforcement; and
- The overall public interest in proceeding with the prosecution at this time.
In addition, the strength of the case for the prosecution may change over time. It is recommended that prosecutors confirm the appropriateness of the election whenever there is a significant change in the circumstances of the case.
The Role of Crown Consultation
The discussion of potential resolutions with colleagues can enormously enhance the process. Consultation with senior colleagues and supervisors enables a general consistency of approach by the Prosecution Service. Consultation also contributes to ongoing educational development and assists prosecutors of all experience levels in ensuring that they have thoroughly and confidently weighed all the issues involved.
Prosecutors are advised to consult with experienced colleagues and supervisors on complex and significant cases. It is the responsibility of prosecutors to adhere to any additional office practices or ACPS protocol on consultation, where applicable.
Accuracy, Transparency, Consistency, and Fairness
Crown consultation facilitates the core prosecutorial values of accuracy, consistency, transparency, and fairness. The following best practices are recommended in the course of negotiated resolutions to further these core values:
- Where practical, communication and consultation with lead investigators and victims, as appropriate, is strongly encouraged during the resolution process (see s. 606(4.1)). Consideration of constructive comments and concerns prior to formalizing a resolution serves the public interest. Though the ultimate assessment of the appropriateness of a resolution remains with the Crown, prosecutors should inform lead investigators and victims of the rationale behind a resolution in advance to its disposition in court;
- Where there has been a change of defence counsel on a file, prosecutors should advise counsel of any existing resolution offers;
- Prosecutors should take extra care and pre-caution when dealing with unrepresented accused to ensure their understanding of the legal process including the ability to access legal advice. It is advisable to have a third party present to any resolution discussions with those unrepresented by counsel. Prosecutors should not engage in a negotiated resolution with self-represented accused unless satisfied the accused is acting voluntarily; and
- Prosecutors are strongly encouraged to keep detailed notes and copies of all correspondence (including e-mails) of resolution discussions on file.
Repudiation of Negotiated Resolutions
The integrity and effectiveness of negotiated resolutions within the criminal justice system would be seriously undermined if prosecutors regularly resiled from negotiated agreements. By necessity, the repudiation of resolutions made by prosecutors must be very rare and may only occur where the agreement made would bring the administration of justice into disrepute and where the accused can be restored to his or her original position.
Of course, there may be instances where different Crown counsel will invariably disagree about the appropriate plea agreement in a particular case. Given the number of complex factors that must be weighed over the course of plea resolution discussions, this reality is unsurprising. However, the vital importance of upholding such agreements means that, in those instances where there is disagreement, the Crown may simply have to live with the initial decision that has been made. To hold otherwise would mean that defence lawyers would no longer have confidence in the finality of negotiated agreements reached with front-line Crown counsel, with whom they work on a daily basis. Further, if agreements arrived at over the course of resolution discussions cannot be relied upon by the accused, the benefits that resolutions produce for both the accused and the administration of justice cannot be achieved. As a result, I reiterate that the situations in which the Crown can properly repudiate a resolution agreement are, and must remain, very rare.
Repudiation may only be considered where exceptional circumstances exist, such as being misled about material facts or where the negotiated resolution is clearly contrary to the public interest. When a prosecutor has serious concerns with the appropriateness of an agreement made earlier by a colleague, the prosecutor should discuss it with that colleague. If the matter cannot be resolved between colleagues, prosecutors should consult with their supervisor for direction. Any proposed repudiation of a negotiated resolution must be approved by the Chief Crown Prosecutor/Executive Director.
In the event that a negotiated resolution is repudiated by defence counsel, prosecutors should confer with their supervisor. If the accused entered a guilty plea on the record in compliance with s.606(1) of the Criminal Code, the onus is on the accused to persuade the court on a balance of probabilities that a valid ground exists for withdrawing a guilty plea. Generally, the applicant must show that a miscarriage of justice would result by the entering of an invalid plea or some other prejudice to the accused.
See Prosecution Pointer #7: A Basic Guide to Effective Sentencing Hearings for a helpful overview of all the factors to consider for sentencing.