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Report No. 142

Chapter V

Canadian Law Commission examines the Concept in a Working Paper of 1989 and Recommends introduction thereof in Criminal Jurisprudence

5.1. During the course of investigation, the Commission realised that the concept of plea-bargain was examined in detail by the Law Reforms Commission of Canada. Working Paper No. 15 was issued by the Canadian Law Commission in the year 1975 entitled "Criminal Procedure: Control of the Process". The Canadian Commission did not view favourably the introduction of the concept of "plea agreement" and expressed serious reservations both as to its utility and as to its desirability as a vehicle for furthering the ends of justice.

The matter was re-examined in the year 1985 and eventually a working paper No. 60 was issued in the year 1989 recommending the consideration of the concept in criminal jurisprudence. The following observations of the Canadian Law Commission in its Working Paper in the year 1989 explain why the Canadian Law Commission reconsidered the matter and recommended the introduction of the concept in the Canadian Criminal Jurisprudence:

"We believe now, as we did in 1975, that justice should not be and should be seen to be, something that can be purchased at the bargaining table. At the same time, however, we are obliged to recognize that our legal system has undergone significant change in the intervening years, and that it is in the process of undergoing further change. Although we remain attuned to the practical and theoretical difficulties inherent in the practice of plea negotiation, we believe a cautious re-examination of the subject to be only prudent and appropriate in the light of a number of recent and ongoing developments having potentially far-reaching effect on the workings and character of our justice system.

[Page 4]

"In short, the nature of our criminal justice system has evolved, and is constantly in the process of evolving. Our recognition of this fact, in turn, has caused us to explore in some detail the problems associated with plea negotiation, as it is currently practised, and to consider what measures (short of total abolition) might be employed to deal with these problems in an effective and principled way.

[Page 5]

"We believe it is safe to say, therefore that the plea negotiation process has not generally enjoyed a very flattering public image. Being a largely unregulated practice, moreover, plea negotiation has been susceptible to abuse. Having considered the question at length, however, and having taken into account recent studies dealing with possible effects that attempts to abolish plea negotiation might have, we are not convinced that abolition (as opposed to regulation), is the soundest remedial alternative. We note that in its recent report on Sentencing Reform, the Canadian Sentencing Commission has alluded to studies indicating that efforts to abolish plea negotiation may in fact present their own difficulties

[Page 7]

"In its policy document on The Criminal Law in Canadian Society, the Government of Canada quite clearly did not view the process of plea negotiation as being incompatible per se with the basic precepts it espoused. Rather than condemn the process outright, it expressed the hope that suitable prosecutorial guidelines would be developed in the area, as part of an effort to control discretion and thereby enhance accountability and equality in the criminal process.

[Page 8]

"In our estimation, it would be a mistake to dismiss plea negotiation as a distasteful practice made necessary only by the unhappy reality of an overburdened criminal justice system. Plea negotiation is not an inherently shameful practice; it ought not, on a theoretical level, be characterised as a failure of principle. If practised properly it should, to the contrary, be recognised as the expression and merging of two complementary principles: those of efficiency and restraint

[Page 98]

"Nor should prosecutorial Compromise necessarily be regarded as a means of shortchanging justices. If the prosecution of a particular accused person without plea negotiation results in conviction for more offences, or conviction for a more serious offence, than that to which the accused was prepared to plead guilty (and results in the imposition of a more severe sentence, or more severe sentences, than might otherwise have been imposed), does this mean inevitably that justice has been properly served? Often, we believe, the ordeal of a full scale trial may create its own injustice."

[Page 9]
[Emphasis added]

5.2. Weighing the pros and cons the Commission finally expressed the view in favour of statutorily recognising the scheme of plea-bargaining which the Commission chose to designate as "plea discussions and agreements." The Commission observed:

"people are more likely to expect that a sentence imposed following a negotiated guilty plea and joint submission will be appropriate. If they are assured that the presiding judge has been apprised, in open court, of the process by which the agreement was reached. They also appear more likely, in such circumstances, to express confidence in the fairness and propriety of the judges handling of the case."

[Page 13]
[Emphasis added]

5.3. In Chapter II of its Working Paper, the Canadian Law Commission has twenty-three recommendations made by the Commission which are appended to this Report.1

1. See Annexure 'B'.

5.4. A close study of the views expressed by the Law Commission of Canada and the recommendations made there supports the conclusion articulated in the earlier Chapters as regards the desirability and need for serious and urgent consideration of this subject. The Commission will proceed to do so after dealing with some observations made by the Supreme Court of India in the context of the existing legal framework which does not recognise the practice of plea-bargaining.

Concessional Treatment for Offenders who on their own initiative choose to plead guilty without any bargaining Back

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