Report No. 142
Recommendation made by the Law Reform Commission of Canada in Working Paper 60
1. The term "plea agreement" should be defined as meaning any agreement by the accused to plead guilty in return for the prosecutor's agreeing to take or refrain from taking a particular course of action.
2. The term "plea discussion" should be defined as meaning a discussion directed towards the conclusion of a plea agreement.
3. ,(1) There term "improper inducement" should be defined as meaning any inducement that necessarily renders suspect the genuineness or factual accuracy of the accused's plea, and as including the following conduct when it is engaged in for the purpose of encouraging the accused to plead guilty:
(a) the laying of any charge not believed to be supported by provable facts;
(b) the laying of any charge that is not usually laid with respect to an act or omission of the type attributed to the accused;
(c) a threat to lay charge of the type described in paragraphs (a) or (b) above;
(d) a threat that any not guilty plea entered by the accused will result, upon the accused's conviction, in the prosecutor's asking for a sentence more severe than the sentence that is usually imposed upon a similar accused person who has been convicted, following a not guilty plea, of the offence with which the accused is charged;
(e) any offer, threat or promise the fulfilment of which is not a function of the maker's office;
(f) any material misrepresentation; and
(g) any attempt to persuade the accused to plead guilty notwithstanding his or her continued denial of guilt.
(2) The term "improper inducement" should be defined so as to make it clear that encouraging the accused to enter into a plea agreement, as defined in Recommendation 1, is not in itself an improper inducement.
4. (1) The prosecutor and the accused, or counsel for the accused on his or her behalf, should be permitted to have plea discussions.
(2) No judicial officer before whom proceedings in respect of the accused are or will be held should take part in plea discussions.
(3) Notwithstanding part (2), it should be permissible for the Chief Justice, or a judge whom he or she has designated, to initiate and preside over plea discussions between the prosecutor and the defence, provided it is emphasized that the accused will not be appearing before that judge and is not obliged to conclude any plea agreement.
(4) A judge may in general terms, inform the prosecution and defence as to the potential benefit of plea discussions, and may provide them with an opportunity to have such discussions.
5. A prosecutor, police officer or defence counsel should not offer any improper inducement to an accused.
6. No judicial officer before whom proceedings in respect of the accused are or will be held should offer any inducement for the purpose of encouraging an accused to plead guilty to any offence.
7. (1) A prosecutor should not, when the accused has retained counsel, have plea discussions directly with the accused m the absence of the accused's counsel.
(2) A prosecutor with whom an unrepresented accused wishes to have plea discussions should inform the accused that-
(a) representation by counsel may be advantageous to the accused; and
(b) if the accused cannot afford to retain counsel, he or she should ascertain from the provincial legal aid plan whether he or she is eligible for assistance.
and should not thereafter have plea discussions directly with the accused unless the accused has informed the prosecutor unequivocally that he or she will not be retaining counsel.
8. (1) Prosecutor should afford accused persons in similar circumstances the same opportunities for engaging in plea discussions.
(2) A prosecutor should endeavour to ensure, in the course of plea discussions, that accused persons in similar circumstances receive equal treatment.
9. Counsel for an accused person should not conclude on the accused's behalf ariy plea agreement that requires the accused to plead guilty to an offence of which the accused maintains he or she is innocent.
10. A prosecutor should not suggest, conclude or participate in any plea agreement that:
(a) requires the accused to plead guilty to an offence that is not disclosed by the evidence;
(b) requires the accused to plead guilty to charges that inadequately reflect the gravity of the accused's provable conduct, unless, in exceptional circumstances, they are justifiable in terms of the benefits that will accrue to the administration of justice, the protection of society, or the protection of the accused;
(c) requires the prosecutor to withhold or distort evidence; or
(d) contemplates a disposition that departs significantly from that which, in the absence of a plea agreement, would have resulted upon the accused's pleading guilty to the same offence, unless, in exceptional circumstances, it is justifiable in terms of the benefits that will accrue to the administration of justice, the protection of society, or the protection of the accused.
11. (1) A prosecutor should, unless the circumstances make it impracticable to do so, solicite and weigh carefully the views of any victims before concluding a plea agreement.
(2) A prosecutor who concludes a plea agreement should endeavour to ensure that victims are told the substance of, and reasons for, that agreement, unless compelling reasons, such as a likelihood of serious harm to the accused or to another person, require otherwise.
12. (1) A prosecutor and an accused who have concluded a plea agreement should, before the accused's plea is entered, disclose to the court-
(a) the substance of, and reasons for, that agreement; and
(b) whether any previous plea agreement has been disclosed to another judge in connection with the same matter and, if so, the substance of that agreement.
(2) The disclosure and justification contemplated by part (1) of this recommendation should be made in open court unless compelling reasons, such an a likelihood of serious harm to the accused or to another person, require otherwise.
13. Upon being informed that the prosecutor and the accused have concluded a plea agreement, the judge should be able, where he or she considers it necessary to do so, to ascertain by questioning whether the accused understands the substance and consequences of that plea agreement.
14. No plea agreement or submission should be binding on judge.
15. In any case in which the judge, having informed of the existence and substance of a plea agreement and of the reasons for that agreement, determines that an accused should not be judicially disposed of in the manner contemplated by the plea agreement, the judge should inform the accused of this fact.
16. Before any guilty plea is accepted from an accused, the judge should be able, where he or she considers it necessary to do so, to ascertain by questioning whether any inducement to plead guilty, other than an inducement disclosed as part of a plea agreement, has been offered to the accused.
17. In any case in which the prosecutor and the accused have concluded a plea agreement, the judge should be able, before any guilty plea is accepted from the accused, to make such inquiry as he or she considers necessary in order to be satisfied that a factual basis for the accused's guilty plea exists.
18. In determining whether to accept an accused's plea of guilty to any offence other than the offence charged, the judge should consider the substance of, and reasoned for, any plea agreement concluded between the accused and the prosecutor.
19. The judge should reject an accused's guilty plea if inter alin he or she has reasonable grounds to believe:
(a) that the plea was entered as a result of an improper inducement;
(b) that the plea was entered as a result of a judicial officer's having offered an inducement for the accused to plead guilty;
(c) where the accused, pursuant to what is currently section 606(4) of the Criminal Code is pleading "not guilty of the offence charged but guilty of [another] offence arising out of the same transaction........" that the offence to which the accused is pleading guilty inadequately reflects the gravity of the accused's provable conduct; or
(d) that no factual basis for the accused guilty plea exists.
20. An accused who has entered a guilty plea should be entitled to withdraw that plea before sentence, or to appeal against a conviction based thereon:
(a) if it was entered as a result of an improper inducement;
(b) if it was entered as a result of the judge's having offered an inducement for the accused to plead guilty;
(c) if it was entered as a result of a significant misapprehension as to the substance or consequences of a plea agreement concluded between the accused and the prosecutor; or
(d) if the prosecutor has breached's a plea agreement concluded with the accused.
21. Where an accused has pleaded guilty to an offence and, upon his or her conviction, has received a sentence that is permitted under the Criminal Code in the circumstances and that accords with, or is within the range anticipated by, a plea agreement, the prosecutor should not be permitted to appeal against the sentence received by the accused unless it is shown
(a) that the prosecutor, in the course of plea discussions, was wilfully misled by the accused in some material respect; or
(b) that the court, in passing sentence, was wilfully misled in some material respect.
22. In any case in which the accused has pleaded guilty to an offence in accordance with a plea agreement concluded between the accused and the prosecutor, any proceedings taken subsequently against the accused in contravention of that agreement should be prohibited unless the prosecutor:
(a) was, in the course of plea discussion, wilfully misled by the accused in some material respect, or
(b) was induced to conclude the plea agreement by conduct amounting to an obstruction of justice.
23. Evidence of a guilty plea, later withdrawn, or of an offer to plead guilty to an offence, or of statements made in connection with any such plea or offer, should be inadmissible on the issue of guilt or credibility in any proceeding.