I don’t do criminal work, but I do enjoy reading and talking about criminal law cases.  I find that people generally get a charge out of it (no pun intended).  Mention O.J. Simpson at a cocktail party, and you’ll see what I mean.  This is particularly true when the discussion turns to the topic of plea bargains.

As difficult as it may be to accept, the fact is that our system could not possibly function without the use of plea bargains.

 Several months ago, the Supreme Court of Canada decided the case of R. v. Nixon ([2011] S.C.J. No. 34).  In that case, Ms. Nixon was charged with dangerous driving causing death, impaired driving and other related offences.  Her lawyer signed a written agreement with the Crown providing for a plea bargain:  Nixon would plead guilty to a charge of careless driving, and all other charges would be dropped. 

 When the agreement came to the attention of the Assistant Deputy Minister (ADM), the ADM decided that this deal was not in the interests of justice and instructed the Crown to disregard the agreement and proceed to trial.  Nixon then brought an application under the Charter of Rights to have the Court require the Crown to adhere to the agreement.  The judge hearing the application agreed with Nixon and found that the Crown’s withdrawal from the agreement was an abuse of process.  The case ended up in the Supreme Court of Canada.

The Supreme Court of Canada disagreed with the Application judge and considered the decision to withdraw from the plea agreement as an act of “prosecutorial discretion”.  Since the ADM had made its decision in the public interest and in good faith, there was no abuse of process.  This was particularly so since Nixon had not done anything in reliance on the plea bargain which she thought she had made. 

Talking to people about cases like this always brings up the plea bargain involving Karla Homolka.  I was at a cocktail party recently in which a number of outraged friends of mine demanded to know why the plea bargain with Homolka had to be honoured when the enormity of her role in the horrible Bernardo killings was not fully known until after the plea bargain was made by the parties and rubber stamped by the trial judge. 

As difficult as it may be to accept, the fact is that our system could not possibly function without the use of plea bargains.  There are simply too few resources at our disposal to cope with the number of cases that come before the courts.  In order for our system of plea bargains to function, that system has to have unimpeachable integrity.  Otherwise, the Defendants could not rely on a plea bargain deal and would never enter into them.  This is particularly true where a plea bargain involves a Defendant accepting a lesser penalty in exchange for his or her agreement to provide evidence against another Defendant whose offences may have been more significant. 

The difference in the Nixon case is that the Crown withdrew from the plea bargain agreement before a judge had actually ruled on it.  As I see it, had Nixon’s case been disposed of by a trial judge in accordance with the plea agreement before the ADM decided to withdraw from the agreement, the Crown would have been stuck with the deal.  The moral of the story?  A deal with the Crown is not a deal until a judge has ruled on it.