Nunatsiaq News
COMMENTARY: Nunavut April 17, 2018 - 10:30 am

Legal Ease, April 17

Does the judge have to accept a plea deal?

JAMES MORTON

Plea deals are a central part of criminal law.

For better or worse—and there are reasonable arguments saying plea deals are not a good idea—our criminal justice system is based on the fact that the vast majority of cases are resolved without a trial.

If that were not the case, the number of additional courts, judges and lawyers required would be enormous.

All that said, in Canada the final decision on any plea deal is made by a judge.

The lawyers can agree on any kind of arrangement they choose, but the sentence is always imposed by the judge and it is the judge’s sentence and not that of the lawyers.

But judges are—almost never—part of plea deal negotiations, so how does the idea of making a deal fit with the judge being the one imposing the sentence?

The Supreme Court of Canada addressed the issue and held that a plea deal should be accepted by a judge, unless “the proposed sentence would bring the administration of justice into disrepute, or would otherwise be contrary to the public interest.”

Basically, a judge must review any proposed sentence and see if it is justified and reasonable.

This means two things. First the proposed plea deal must be in the range of what is reasonable—neither too lenient nor too harsh.

Second, the judge has to be given enough information about the case so as to assess it properly.

This means the lawyers have to be able to explain the sentence and show it is consistent with other cases with similar facts. Usually this poses no real problem.

Almost all plea deals involve a guilty plea and that shows remorse by an accused—this usually justifies some leniency.

What’s more, Crown and defence lawyers have a pretty good idea what is and is not “in the range” and seldom make deals outside the range.

This means that an accused who agrees to a plea resolution can be reasonably confident that the resolution will be accepted by the court.

That said, on occasion a proposed joint resolution is not accepted and the judge imposes a different sentence.

That happened recently in Pond Inlet, where the judge heard a joint submission on a break-in and breach of probation for one month in jail.

The judge ruled that sentence was not appropriate and gave the accused a seven-month jail term.

The judge commented: “And the law is clear—judges retain the final responsibility to ensure that sentences are appropriate and lawful.”

Cases where a joint sentence submission are rejected are rare but, as you can see, they do happen and this puts a duty on lawyers to ensure they make joint submissions that can be justified.

James Morton is a lawyer practising in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.

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