Just Desserts Just Deserted
Saturday, November 29, 2008 03:45 AM
-Justice Wallace Craig (retired)
The Criminal Code Canada is the legal bible for judges and prosecutors.
Yet there is reason to believe that in some situations it is being applied in ways that smack of expedience and convenience bringing discredit to the criminal justice system.
I have no quarrel with the way judges conduct trials of criminals; however, there is a murky cloud over the post-trial procedure used to determine fit sentences.
Every trial of an accused person must be conducted in public and generally ends with a finding of guilt or acquittal. If the accused is found guilty or pleads guilty then there must be a second public hearing in which the judge, alone, determines the degree of punishment that fits the crime.
The Criminal Code stipulates the powers of the judge and procedures to be followed in this subsequent hearing to determine facts which will form the basis of a sentence.
In conducting the hearing the judge may, after considering the submissions and evidence tendered by the prosecutor and offender, demand production of evidence that might assist in determining the appropriate sentence.
The entire sentencing hearing must be transcribed and open to the public. It must be conducted with the same degree of formality and impartiality as was the trial process.
All well and good you say, but what happens if before trial, the prosecutor and defence counsel carry out private bartering over a reduced charge? In this situation, the parties might agree on a specific sentence or a narrow range – three to five years, for example –within which they will accept a sentence being imposed.
I say it is wrong, because a plea bargain inevitably negates trial on the original charge and nullifies the whole purpose of a sentencing hearing called for in the Criminal Code.
It calls into question the willingness of many judges to impose sentences arranged outside their courtrooms, sentences based on laundered versions of facts and records of offenders.
Once a judge imposes a plea-bargained sentence, it constitutes a palpable avoidance of the duty to conduct a public hearing and decide, alone, without the contrivances of counsel, a sentence that squares with the facts. Avoidance of this mandated process allows prosecutors and defence counsel to become negotiators standing united before the court with a joint submission.
Think about it: Two lawyers plea-bargaining behind closed doors or in whispered conference in a public corridor, negotiating a sentence. A resolution discussion they call it, bureaucratese for plea-bargaining. Back they scuttle before the judge: “This matter has been shortened considerably; it will be a guilty plea to a lesser offence; the witnesses have been released; and we have a joint submission on sentencing.” (It is noteworthy that Crown and defence counsel are always careful to avoid mention of a plea bargain.)
The question for media and the public is: How does a case go from substantial likelihood of conviction to a joint submission?
A person accused of committing a crime is charged only after a charge-approval prosecutor has concluded that there is a substantial likelihood of conviction. I interpret that as a practical certainty that durable evidence will support a conviction.
That standard seems to mean little by the time cases reach court and first degree murder is down-sized by plea bargaining to second degree murder – or, worse still, to manslaughter.
The court system is littered with other examples: assault shrivels down to common assault; breaking and entering to mischief; wife-beating assault causing bodily harm to a peace bond (a promise to be good); drug trafficking to simple possession of drugs; on and on it goes.
Plea bargaining has been rampant for decades and shows no sign of diminishment. Cries of injustice from victims of crime are studiously ignored by a judiciary that views plea bargaining as a major factor in efficient processing of cases.
It may be that the kindred character of out-of-court settlements in civil lawsuits, a recognized and desirable process, seeps into the mindset of today’s judges who accept plea bargains – this despite the dissimilar nature of criminal proceedings, in which victims have no standing and cannot participate.
If there is to be a return to a true just-deserts determination of sentences, bringing with it justice for victims and their families, then it is up to the judiciary to reject plea bargaining and get on with the hard, demanding and bleak work of conducting sentencing hearings and punishing criminals.
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Posted by: taxinapothole on November 29 2008 7:58 AM
I have always felt that plea bargining is over used for all the wrong reasons and has gotten out of control.
Do the crime and do the time!
No deals!
Particularly in cases of repeat offenders.