Joint Submissions
What is a Joint Submission on sentence?
The Crown and Defence agree to recommend a particular sentence to the TJ in exchange for the accused entering a guilty plea.
Name the main benefit of plea bargaining to the Criminal Justice System
Saves time, resources and expenses
What constitutes an "Abuse of power"?
Crown conduct that is egregious and seriously compromises trial fairness and/or the integrity of the justice system.
Manslaughter
What is a "negotiated" plea deal?
Plea deals that are reached through protracted negotiations that delve into the specific facts and circumstances of the case.
Are Joint Submissions final?
No, the TJ has the final say. If they are unduly lenient or unduly harsh, the TJ can jump the position.
What privilege protects plea bargaining discussions from judicial scrutiny?
Settlement privilege
Name one implication presented of the Crown's prerogative to accept lenient sentences but not overly harsh ones?
1. When faced with a choice between an inapposite charge and an excessively harsh penalty, Crowns should favour the former.
2. They should err on the side of leniency when uncertain what would constitute a substantially just outcome
3. They ought not to overcharge defendants to establish string bargaining positions
Name 2 of the 3 aspects of a just conviction/acquittal.
1. Bare Accuracy
2. Intrinsic justness of the offence charges
3. A just conviction is the bit between the offence charges and the circumstances of the case (it fits with the accused normative guilt or innocence)
What is a "going-rate" plea deal?
Reached through cursory exchanges based on superficial accounts of the facts that are drawn largely from occurrence reports and from the accused’s criminal record.
These tend to reflect the so called “going rate” for the charges at issue.
These are a standard price point known to repeat players in the criminal justice system. Going-rate plea bargains are used to dispose of charges “quickly, with little or no haggling, shortly before or during a routine, preliminary court appearance.
What is the benefit of a Joint submission?
They help resolve the vast majority of criminal cases and in doing so, they contribute to a fair and efficient CJS.
Name 2 common objections to plea bargaining
1. Concerns that the practice is secretive and arbitrary
2. That it can result in disproportionately low or high sentences
3. That it can elicit guilty pleas from innocent people – contributing to wrongful convictions
4. That is subverts trial rights and processes
Name one obligation that is put on counsel during a Joint Submission.
1. Ensure that they amply justify their position on the facts of the case presented
2. Provide why the proposed sentence would not bring the administration of justice into disrepute or otherwise be contrary to the public interest
How do mandatory minimums play an impact in an accused’s decision to plead guilty?
Defendants are motivated to plead guilty to lesser offences because those offences are highly likely, or even guaranteed, to result in more lenient sentences than the sentences that would be entailed by the original charges. This bargaining strategy places tremendous pressure on defendants.
What impact did R v Jordan (2016) have on plea bargaining?
Jordan made it so that Crowns may need to address their backlog and avoid delay by making even greater use of charge screening and plea bargaining.
What are the 4 possible approaches to depart from a Joint Submission?
1. The Fitness Test
2. The Demonstrably Unfit Test
3. The public Interest Test
4. The approach that treats the Fitness and Public Interest Test as essentially the same
What is one recommendation suggested to improve plea bargaining?
A restriction on prosecutorial discretion.
What is the role of the Crown during plea bargaining?
They have tremendous discretionary authority to make context sensitive judgements in individual cases.
They can mobilize this discretionary power to put extraordinary pressure on defendants to accept a plea.
Finish the quote: Plea bargaining "is not some adjunct to the criminal justice system; it is the _________"
The criminal justice system itself
What are "half-loaf" plea bargains?
Prosecutors may dispose of weak cases by offering lenient plea deals
Richard Lippke has termed this practice “half-loaf” plea bargaining because it reflects the prosecutor’s attitude that a lenient punishment is better than a dismissal or an acquittal -- a half loaf is better than none.
According to the SCC, what is the proper legal test a TJ should apply when departing from a Joint Submission? Briefly describe it.
1. The Public Interest Test
2. The proposed sentence needs to bring the administration of justice into disrepute or would otherwise be contrary to the public interest.
Crowns using their charging discretion to elicit guilty pleas by bringing more serious criminal charges at the outset, and then offering to reduce them—thereby lowering the associated penalty range—if the accused agrees to plead guilty is called what?
Charge bargaining
What is one of the methods listed as providing Crowns with further ethical guidance beyond the “seek justice” mandate?
Policy manuals, practice memoranda, rules of professional conduct, statutes and precedents.
What are the 4 principles that Tyler identified that influence whether people tend to regard the decision-making process as legitimate?
1. "Voice" or "participation", which can be understood as the participant's ability to tell their story
2. "Neutrality", or the perception that the decision maker is unbiased and neutral (enhanced by transparent decision-making)
3. "Respect", or the impression that the decision maker is courteous, polite, and concerned with upholding the participant's rights
4. "Trust", or the belief that the decision maker is caring and sincere
What is, in Paciocco's view, the best approach to plea bargaining? Explain the approach.
1. The Fixed Offer approach
2. A Crown identifies the just case result she would ideally like to obtain, then exercises her initial charging discretion accordingly. This process requires her to review the evidence in light of Crown policies, statutes, case law, and the purpose and principles of sentencing, as outlined above. It also requires her to make appropriate disclosures to the defence and to solicit and consider the defence’s perspective.