If you follow American news or politics, you probably know that President Joe Biden’s son, Hunter, has agreed to a plea bargain that will reduce his felony tax evasion charges to a misdemeanour that will likely result in no jail time. And you’re undoubtedly familiar with the term “plea bargain” and know that it typically negates the necessity of a trial by letting a criminal defendant plead guilty to a lesser offence in exchange for a more lenient sentence.
But what else should one know about plea bargains? If you’re facing criminal charges in Canada, is that an easy and worthwhile option to pursue? Are there different kinds of plea bargains, and how are they negotiated?
With decades of Greater Toronto Area criminal law experience and expertise in plea bargaining, the criminal defence lawyers of Mass Tsang can answer those questions and more. While we explain plea bargains to you, though, know that this information should not be construed as legal advice. And if you’re facing criminal charges, consult with a skilled criminal defence lawyer before trying to engage the Crown in a possible plea bargain.
The first thing you should know about plea bargains is that far more criminal cases are settled through plea bargains than by a judgment after a trial.
Why, you ask?
Because a plea bargain provides benefits to both parties, the Crown and the defence. The Crown benefits by avoiding the expenses, time, and other inconveniences of holding a trial. In fact, without plea bargains, Canada’s criminal justice system would likely grind to a halt. The time and personnel needed to conduct trials are dwarfed by the number of defendants in the criminal court docket at any one time. In some cases, the Crown may also want to avail itself of a plea bargain to protect a victim from the trauma of having to testify during the trial.
The defendant benefits from a reduction in the charge(s) and/or severity of the penalties. In many cases, defendants can avoid a life-disrupting criminal record with a plea bargain. Defendants also benefit because a trial imposes costs, lost time, and other inconveniences on them too.
Another plea bargain benefit for both parties is knowing the certainty of the case’s outcome. Trial outcomes are never “certain” until the court renders judgment, and judges have vast discretion in subsequent sentencing that may differentiate between a fine or up to ten years in prison or some other broad-spanned sentencing range under the Criminal Code. Therefore, the Crown and the defence are usually willing to negotiate a plea to gain the certainty of reasonably favourable outcomes — the punishment of the defendant on the Crown side and reduced charges and/or leniency on the defence side.
Simply put, plea bargaining is a negotiation procedure between Crown prosecutors and the defence — we’ll give you this, if you give us that, and vice versa. Judges are not involved in the plea bargain process and can reject or modify the terms of the plea deal if they don’t believe it’s appropriate.
Initiated by either side, most plea bargaining begins before the trial date. However, negotiations can be — and often are — initiated mid-trial if unexpected evidence emerges to the detriment of either side. The Crown and defence may also engage in plea bargaining during appeals, especially if new information about the case arises or one side believes it has a significant edge.
Plea bargains can be structured in many different ways. If you’re accused of several different offences — like say DUI, reckless driving, and assault on a peace officer — the Crown might agree to drop the latter two charges for a guilty plea on the DUI. The Crown wins by avoiding trial, and you win by avoiding the penalties that come with the other charges. Or, if the evidence supporting the DUI is weak, the Crown might agree to drop it and maybe the assault charge (as long as it was minor) for a reckless driving plea. This would be a big win for you, as you wouldn’t face a criminal record and other severe penalties that come with the other charges.
A plea deal can also revolve around penalties and not change anything about the original criminal charge(s). For example, in exchange for a guilty plea on theft over $5,000, the Crown offers only to seek penalties of a fine, restitution, and probation, with no prison time. Plea deals are often structured to allow the defendant to plead guilty to the charges as a summary conviction offence rather than an indictable offence, with its much harsher penalties. Plea bargaining is also used to secure a conditional or absolute discharge upon conviction. This helps defendants avoid a permanent criminal record if they do not re-offend.
Success in plea bargain negotiations depends on which side has the edge, and the evidence and the relative strength or weakness of the Crown’s case primarily dictate this edge. During talks, Crown and defence attorneys usually raise these strengths and weaknesses in an effort to make the other side concede, and at some point in the process, one side will blink.
While a defendant can try to negotiate a plea bargain on their own with the Crown, it is generally inadvisable as prosecutors have the upper hand due to their legal expertise and inherent legal power that comes with being on the offensive team.
Your criminal defence lawyer will not structure a plea bargain without your knowledge and input. Rather, your lawyer will likely advise you that based on the evidence and case details, a particular plea bargain might represent the most favourable option in your defence. And, if you don’t like the terms of a plea bargain offered to you, you can certainly reject it.
If you’re facing criminal charges in the Greater Toronto Area, turn to the expertise of skilled criminal defence lawyers like the ones at Mass Tsang. We are dedicated to securing positive outcomes for our clients and have a stellar reputation for delivering them through negotiations with the Crown and at trial. To secure your expert defence, contact us for a free consultation.
