Plea Bargains

As soon as an individual is charged, as the defence lawyer, I will seek the Crown and ask for disclosure: the reports, the officer’s notes, the details of what is being alleged. In the course of these discussions, I also keep in mind the serious repercussions for the accused because we are not talking about a couple of years in jail here; we are talking about what could be a lifetime for some people, especially if they are elderly. I will find out what the Crown is offering.

I may ask to resolve this by way of a second degree charge as opposed to a first degree charge. The Crown may respond that he could go to second degree but will want 15 years jail. This could save a client 10 years jail. As a defence lawyer, I have a duty to bring that offer back to my client because the client has a right to know what has been offered. The client can either decide to accept, reject or hold off on it. But as defence lawyer, if I get an offer from a Crown, or even if it is being discussed, I must bring it back to my client.

Plea bargains go on from the very beginning when the defence lawyer is first receiving the initial disclosure on a case and they can continue throughout the preliminary hearing and throughout the pre-trials. They can wrap up the day before the trial begins; I have had that happen. They can even wrap up as the jury is deliberating. There are no deadlines in plea bargains.

All plea bargain discussions are off the record and they are not to be referred to at the trial. And here’s an example of why not. This occurred during my first murder trial that I did with a lawyer in Toronto. Our client was charged with a second degree murder and the Crown had offered a plea bargain to manslaughter for five years. Our client rejected it, he insisted he did nothing wrong, he was not guilty. He rejected the plea bargain and he got up in the witness stand and testified. In the course of the trial the Crown attorney said during cross examination, you are guilty and you know you are guilty. The accused said I am not guilty and you know I am not guilty because you offered me manslaughter. Ultimately our client was found not guilty and a week later he walked out of the courtroom a free man after having served only a couple of months after he was arrested. As an individual, he was not bound by the rules of professional conduct; as a lawyer I would not have been allowed to make reference to the plea bargain negotiations because they are all confidential and off the record.

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If you, or someone you care about, is dealing with criminal law issues in the Ottawa, Ontario Region, contact Engel and Associates for a consultation.