3.7 Resolution Discussions
Public Prosecution Service of Canada Deskbook
Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act
Revised November 8, 2017
Table of contents
- 1. Introduction
- 2. Principles Guiding Resolution Discussions
- 3. Communications with Victims
- 4. Types of Resolution Discussions
- 5. Judicial Pre-Trial Conferences
- 6. Delegated Authority to Prosecute
Resolution discussions between Crown and defence counsel, which are intended to lead to a narrowing of the issues at trial, or which may avoid litigation altogether, are an essential part of the criminal justice system.Footnote 1 In fact, the vast majority of cases never go to trial; rather they are resolved by way of a guilty plea to the charges laid or a guilty plea to a lesser offence. In most cases, these outcomes flow from discussions between Crown and defence counsel regarding the evidence, possible defences, Canadian Charter of Rights and Freedoms issues, and other matters regarding the likelihood of a conviction. Discussions of this nature are often referred to as
“resolution discussions.” Though not defined in the Criminal Code, resolution discussions embrace a diversity of practices other than that just described: 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.
Early and meaningful resolution discussions can benefit all participants in the criminal justice system and advance the administration of justice. Crown counsel are encouraged to initiate resolution discussions, and in so doing they should agree to present a joint submission as to the exact sentence (for example, length of incarceration, amount of restitution order, amount of monetary fine, etc.) only when satisfied that the joint submission will not bring the administration of justice into disrepute and is not otherwise contrary to the public interest.Footnote 2 A trial judge should reject a joint submission on sentence only if it is so
“markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of the criminal justice system.”Footnote 3
Crown counsel should advise the court of the factors underlying the joint submission so that the basis of the decision to agree to a joint submission is readily understood by the court and members of the public. When a joint submission is contentious, counsel must not only apprise the trial judge of the circumstances of the case, but outline any benefits obtained by the Crown or concessions by the accused.
“The greater the benefits obtained by the Crown, and the more concessions made by the accused, the more likely it is that the trial judge should accept the joint submission, even though it may appear to be unduly lenient.”Footnote 4 Since trial judges must depart
“only rarely” from joint submissions, counsel must ensure they justify their position on the facts of the case as presented in open court by providing a full description of the relevant facts so that the judge has a proper basis to determine whether to accept the joint submission.Footnote 5
Crown counsel should make their best efforts to reach agreements on such issues as early as possible in the case. It must be emphasized that any joint sentencing recommendations made to the court as part of a resolution discussion are subject to the overriding discretion of the court to accept or reject any submission by counsel.Footnote 6 When a sentencing judge indicates he or she is disinclined to follow a joint submission on sentence or is considering imposing a sentence outside the range proposed by counsel, Crown counsel should ensure the judge gives counsel an opportunity to make further submissions before pronouncing on sentence.Footnote 7
Crown counsel should also be aware of their obligations concerning victims of crime under the Canadian Victims Bill of Rights (CVBR). For example, victims of crime have general and specific rights regarding restitution that require positive actions from Crown counsel and Crown Witness Coordinators (CWC). See the PPSC Deskbook guidelines 5.6 Victims of Crime, and 6.7 Restitution.
Although resolution discussion practices may vary from jurisdiction to jurisdiction, the underlying guiding principles remain the same. This guideline is intended to give Crown counsel guidance on how to engage in meaningful discussions. The PPSC Deskbook guidelines covering specific types of prosecutions and confidential legal memoranda must also be taken into account.Footnote 8 In addition, Crown counsel must be alert to the availability of such options as alternative measures programs and restorative or community justice processes.Footnote 9
2. Principles Guiding Resolution Discussions
The unique role of Crown counsel as both advocate and Minister of justice means that they must represent the interests of the Crown as knowledgeable and effective negotiators while ensuring that the accused is treated fairly and according to the law.Footnote 10 Resolution discussions must be based on the principles of openness and fairness, and must always be conducted in the public interest in the effective and consistent enforcement of the criminal law.
One of the more serious criticisms of plea bargaining pertains to the secrecy of the process and the related concern regarding
“private deals” between counsel, subsequently ratified by the judiciary, engendering public suspicion and cynicism.Footnote 11 The principle of openness stems from the concept that
“fair and rational decisions are more likely to be perceived as fair and rational if their origins and underpinnings have been fully disclosed.”Footnote 12 The Supreme Court of Canada (SCC) has said that a thorough justification of a joint submission on the record has an important public perception component. Unless counsel put on the record the considerations supporting the joint submission,
“though justice may be done, it may not have the appearance of being done.”Footnote 13
The openness principle has at least two components: (i) canvassing, where appropriate, the views of certain interested parties regarding a proposed resolution and (ii) upholding the open court principle.
When reasonably possible, Crown counsel should solicit and weigh the views of those involved in the Crown's case – in particular, the victim (where there is one), the community where appropriateFootnote 14 and the investigating agency. In some cases, consultation may be warranted with the relevant provincial prosecuting service or with a Department of Justice legal services unit.Footnote 15 However, after consultation, the final responsibility for assessing the appropriateness of a plea agreement rests with Crown counsel.Footnote 16 If a plea agreement is reached, counsel should make reasonable efforts to ensure that victims and investigating agenciesFootnote 17 understand the substance of the agreement and the reasoning behind it. The discussion with victims of crime is subject to certain statutory limitations.Footnote 18 For example, where Crown counsel believes that discussions with a victim may endanger the life or safety of another person, Crown counsel can rely on section 20(d) of the CVBR to limit, delay or avoid such discussions.
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 in the presence of defence counsel.Footnote 19 This should be done only in those rare situations involving facts which, in the interest of the public or the accused, ought not to be disclosed publicly. For example, there may be cases where it is inappropriate to put the key facts supporting a joint submission before the court on the public record due to privacy and safety concerns or the risk of jeopardizing an ongoing criminal investigation.Footnote 20 Examples include cases where an accused is cooperating with investigators or is terminally ill. In such cases, counsel must find alternative means to apprise the trial judge while ensuring that a proper record exists for appeal purposes.Footnote 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.Footnote 22
Crown counsel should maintain a complete signed and dated written record on the file of all resolution issues discussed, offers made or agreements reached, and information provided to victims.Footnote 23 This will promote a consistent and informed practice, particularly where multiple Crown counsel successively handle a file.
An effective resolution discussions system is premised upon the integrity with which the justice system participants operate.Footnote 24 Unfair plea bargaining practices lead to results that are contrary to the administration of justice.
Fairness means that the accused ideally should have received core disclosure prior to plea bargaining so that the parties are on equal footing. However, the practical realities of plea negotiations between Crown and defence counsel, in particular where defence counsel indicates his or her client wishes to enter an early plea, are such that it may not be reasonably feasible to complete disclosure prior to entering a plea. In such cases, Crown counsel should ask that the accused, through defence counsel, indicate on the record that they waived their right to disclosure. 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 disclosure and has clearly waived it.Footnote 25 Any such waivers should be indicated on the court record at the time of entering the plea.
Crown counsel may not proceed with a resolution agreement where the charge approval standard set out in the PPSC Deskbook guideline
“2.3 Decision to Prosecute” cannot be met.Footnote 26 If the case does not meet this standard, charges are to be withdrawn or stayed.
It is important to emphasize that Crown counsel cannot proceed with a resolution agreement where the Crown has knowledge or concerns based on the evidence that suggest the accused may be factually innocent.Footnote 27 Fairness also means that the Crown should honour all negotiated plea or sentence agreements unless fulfilling the agreementFootnote 28 would bring the administration of justice into disrepute or is otherwise contrary to the public interest.Footnote 29
In addition, while they should not disregard the position that another colleague previously communicated on the file, Crown counsel may be justified in repudiating an agreement if misled about material facts. The decision not to fulfill an agreement should be made only after consultation with, and approval of, the Chief Federal Prosecutor (CFP) and the appropriate Deputy Director of Public Prosecutions (Deputy DPP). As well, if counsel disagrees with an agreement reached earlier by a colleague, the matter should be referred to the CFP and then to the appropriate Deputy DPP, unless the disagreement stems from a material change in facts. In all cases where a plea resolution is repudiated, the reasons for repudiation must be well-documented on the file. Crown counsel should inform defence counsel in writing of the reasons for the repudiation.
If an accused enters a plea based on a negotiated plea or sentence agreement and the court disposes of the case on those terms, the Crown may not undertake an appeal unless exceptional circumstances existFootnote 30 and a Deputy DPP authorizes the appeal in light of the recommendation of the CFP.
3. Communications with Victims
Counsel may have an obligation to advise victims of any resolution agreement, including diversion programs, alternative measures, breaches or repudiations. The CVBR provides victims of crime with the right to information about the progress and outcome of proceedings. This right can be exercised through section 606 of the Criminal Code or through provincial or territorial victim rights or victim services legislation.
The Criminal Code imposes obligations on the Court to inquire whether the prosecutor has taken steps to inform the victim of any plea agreement specific to the offence where the victim suffered harm or loss. When a plea agreement is presented to the Court for the offence of murder or for a serious personal injury offence, the Court is bound to ask Crown counsel whether any victims of the offence have been advised of the agreement being proposed to the court. For any other indictable offence where the maximum punishment is five years or more, the Court will ask two questions of Crown counsel: first, whether any victims of the offence have requested information about resolution discussions and second, whether the victims have been so advised. The Crown can discharge its obligation by having conversations with the victims directly or by having Crown Witness Coordinators provide the information to the victims. All conversations with victims undertaken to satisfy these requirements should be documented in the case file.
Generally, Crown counsel or Crown Witness Coordinators should make reasonable efforts to find out if a victim of an offence desires information on any future plea agreements. This information will assist counsel in satisfying the requirements of sections 6 and 7 (rights to information) of the CVBR as well as in preparing for the requirements of section 606 of the Criminal Code. Section 20 of the CVBR provides certain limitations to this requirement that must also be considered.
4. Types of Resolution Discussions
4.1 Unrepresented accused
Plea or sentence negotiations with an unrepresented accused call for extreme care. Crown counsel may inform an unrepresented accused person of the Crown’s initial position on sentence in the event of a guilty plea. However, Crown counsel may not advise the accused on whether to accept the Crown’s offer. Any such discussions can proceed only where Crown counsel is satisfied that the accused is acting voluntarily.Footnote 31 Moreover, in entering into any plea discussions, Crown counsel must not take advantage of the fact that the accused is unrepresented by counsel.
Crown counsel should first inform the accused of the right to retain counsel and, where appropriate, advise the accused of the availability of legal aid. If there are any concerns about the accused’s understanding or ability to understand the extent of his or her jeopardy and the right to counsel, Crown counsel may need to take additional steps and encourage the accused to consult with counsel. If the accused declines to retain counsel, Crown counsel should generally arrange for a third person to be present as a witness during discussions because of the need to maintain an arms-length relationship with the accused. Crown counsel should follow the local practices in their region to mitigate the risks regarding dealings with unrepresented accused. Depending on local practice, it may be advisable for Crown counsel to consult duty counsel concerning the unrepresented accused person’s matter. It is especially crucial in these cases to keep on file a detailed written record of all discussions. In most instances, a written agreement or written evidence of an agreementFootnote 32 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 also recommend to the presiding judge holding a plea comprehension hearing.
4.2 Charge discussions
Charge discussions may properly cover the following topics:
- reducing a charge to a lesser or included offence;Footnote 33
- 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);
- agreeing to reduce multiple charges to one all-inclusive charge (where permitted by law); and
- agreeing to stay certain counts and proceed on others, relying on the material facts that support the stayed counts as aggravating factors for sentencing purposes.Footnote 34
The following practices are not acceptable in the context of charge discussions:
- 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;
- 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;
- agreeing to a plea of guilty to a charge to a lesser or included offence for the purpose of avoiding mandatory minimum penalties (MMPs);
- negotiating plea agreements that involve other government departments’ administrative or enforcement processes (eg, Canada Revenue Agency) without their consultation regarding the proposed resolution; or
- negotiating plea agreements with defence counsel representing multiple co-accused where there is reason to believe that he or she is in a conflict of interest.
4.3 Procedural discussions
Procedural discussions may properly include the following:
- agreeing to proceed summarily instead of by indictment;Footnote 35
- agreeing to dispose of the case at a specified future date if, on the record and in open court, the accused indicates that he or she is prepared to waive the right to a trial within a reasonable time; and
- agreeing to the waiver of charges to or from another province or territory, or to or from another judicial district within a province or territory.Footnote 36
4.4 Sentence discussions
Crown counsel may engage in sentence negotiations where:
- the accused is willing to acknowledge guilt unequivocally; and
- the consent of the accused to plead guilty is both voluntary and informed.Footnote 37
Each case must be resolved on its merits in a manner that is fit and just. An agreed-upon resolution should not adversely affect the investigation or prosecution of others.Footnote 38 For example, an agreement as to sentence ought not to be so low that it makes what is an otherwise fit sentence for a co-accused a violation of the disparity principle.Footnote 39 Moreover, sentence agreements can never bind investigators in respect of future investigations.
Crown counsel shall also consider the sentencing principles set out in sections 718-718.21 of the Criminal Code. In addition, Crown counsel must be aware of section 16 of the CVBR and section 737.1 of the Criminal Code, which require a court to consider, for all offences, whether an order for restitution should form part of sentence.Footnote 40
4.4.1 Scope of sentence discussions
Sentence discussions may properly include the following:
- an undertaking by Crown counsel to recommend a certain range of sentence or 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 advance;Footnote 41
- an agreement by Crown counsel not to seek additional optional sentencing measures. However, Crown counsel cannot negotiate in this manner regarding sentencing measures that apply by operation of law,Footnote 42 nor may they waive the right to seek forfeiture orders or prohibition orders in order to obtain a resolution agreement without prior approval of their CFP or Deputy CFP;Footnote 43
- an agreement regarding the filing of a notice of intention to seek greater punishment, that is made in accordance with the PPSC Deskbook guidelines on impaired driving cases and on other offences for which there are mandatory minimum penalties;Footnote 44
- an agreement by Crown counsel not to oppose the imposition of an intermittent sentence rather than a continuous sentence;
- an agreement to include or to not include restitution as part of sentence;
- an agreement regarding the type of conditions to be imposed on a conditional sentence; and
- consideration of alternative resolutions, including community justice processes (for example, circle sentencing), in accordance with the PPSC Deskbook directive
The following practice is not acceptable:
- a promise in advance not to appeal the sentence imposed at trial.
4.4.2 Conduct of sentence discussions
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, Crown counsel should make, as soon as practicable, a time-limited offer. This offer should reflect the fact that generally a plea of guilty is a mitigating factor on sentence, especially where the accused pleads guilty at the earliest opportunity.Footnote 45 Absent a significant change in circumstances, this offer should not be repeated at subsequent stages in the trial process (for example, after a preliminary hearing, on the day of trial);
- crown counsel should initiate, as well as respond to, plea discussions with counsel;
- where an accused changes counsel, Crown counsel should advise the new defence counsel of all previous offers and the Crown’s present position in light of the known facts;
- before recommending that a fine be imposed, Crown counsel should take reasonable steps to ensure that the fine is an appropriate disposition, including 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 case 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 may wish to have the sentencing proceedings take place on that future date;
- crown counsel should ensure that, prior to making an offer to defence counsel, they consult with their CFP or designate and/or headquarters counsel when required in accordance with the PPSC Deskbook guideline Footnote 46) must be borne in mind when assessing whether a proposed disposition is appropriate; and
- crown counsel must consult with the CFP or Deputy CFP before entering into a plea agreement that may deviate from the range of sentences generally imposed for a particular offence in a jurisdiction. Consultation with colleagues should also occur when Crown counsel are uncertain about the range of sentences for an offence in a jurisdiction. The more serious the crime, the more important it is to consult.
4.5 Agreements as to the facts of the offence
Where an accused decides to plead guilty, Crown counsel must put before the court those facts that could have been proved by admissible evidence if the matter had gone to trial. Discussions regarding the facts may properly include the following:
- whether to include in representations to the court embarrassing facts which are of little or no significance to the charge;
- whether to rely on an agreed statement of facts; and
- whether to submit an agreed statement of the impact on public welfare in the context of regulatory offences.
The following practice is not acceptable:
- entering into an agreement respecting facts that results in, or gives the appearance of, misleading the court, such as:
- an agreement not to advise the court of any part of the accused's provable criminal record that is relevant or could assist the court;
- an agreement not to advise the court of the extent of the injury or damages suffered by a victim;
- an agreement to withhold from the court facts that are provable, relevant, and that aggravate the offence; or
- 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.
4.6 Narrowing the trial issues
For cases that are proceeding to trial, Crown counsel must 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; and
- more particularly, identify those issues and witnesses’ anticipated evidence from which defence counsel might make admissions, such as voir dires on the admissibility of statements.Footnote 47
5. Judicial Pre-Trial Conferences
Resolution discussions may take place between counsel alone or in the presence of a judge during judicial pre-trials or pre-trial conferences. Judicially supervised pre-trial conferences are now an entrenched and important facet of our criminal justice system. A system of judicially-supervised pre-trials exists in most jurisdictions, although the form may differ from one jurisdiction to the next. They are effective not only in encouraging the fair disposition of cases without trial, but also in narrowing the issues in cases that proceed to trial.Footnote 48 Crown counsel are encouraged to take the initiative with court administrators to hold a pre-trial conference, where the court has not done so.
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 such that meaningful discussions regarding the facts and any possible issue or plea resolutions may take place;
- identifying before the pre-trial conference those areas where agreements can be reached on issues that would shorten the proceedings;
- discussing the relevant issues with defence counsel prior to the pre-trial conference; and
- securing the attendance of an investigator on the case, where such attendance would be useful or necessary.
Counsel may conduct guilty plea and sentence proceedings before the judge who presides over the pre-trial conference where there is a joint position on sentence or where both defence and Crown counsel consent to the pre-trial judge conducting the sentencing hearing.
6. Delegated Authority to Prosecute
At times, individuals are charged with offences under the Criminal Code and other federal statutes arising from the same incident. To avoid the need for both a provincial prosecution service and the PPSC to conduct separate trials and to avoid the potential for conflicting judicial outcomes on the same evidence, it is customary for the prosecuting service having jurisdiction over the less serious offence to delegate authority to prosecute that offence to the prosecution service having jurisdiction over the more serious offence. Thus, for example, the PPSC may authorize a provincial prosecution service to prosecute on behalf of the PPSC an offence under the Controlled Drugs and Substances ActFootnote 49 where the accused also faces a more serious charge under the Criminal Code. Conversely, a provincial prosecution service may authorize the PPSC to prosecute on its behalf an accused for an offence under the Criminal Code where the accused also faces a more serious drug charge.Footnote 50
When a delegation of authority to prosecute a charge takes place, the prosecution service that delegated the prosecution retains ultimate control over the prosecution and the prosecutor to whom that matter has been delegated remains ultimately accountable to the delegating prosecution service.Footnote 51 Thus, when the DPP or a CFP (or Deputy CFP or General Counsel, Legal Operations) on the DPP’s behalf, delegates authority to the province to prosecute a federal charge, the DPP retains the right to be informed of the matter, and to assume conduct of the delegated matter if there is disagreement on how the matter should be handled. It is usual practice for consultation between the prosecution services to continue as needed after the delegation. In practice, this ultimate accountability means that the delegating prosecution service should be consulted on resolution discussions on cases:
- that give rise to sustained, significant and/or anticipated media interest;
- where there is potential for a negative judicial ruling or comment against a prosecutor personally or the PPSC generally;
- where there is potential for a particular resolution agreement to generate significant public criticism;
- where an investigative agency’s policies, practices or enforcement powers are challenged in the context of resolution discussions; and
- where a proposed resolution agreement would depart from this guideline.
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