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No Votes in Justice — Plea Bargaining and Wrongful Convictions

At the expense of justice, governments improve the cost-efficiency of the criminal justice system but thereby weaken the safeguards against wrongful convictions. Doing so makes more money available to be spent on more politically profitable areas because there are no votes to be gained by improving the criminal justice system. This is a summary of part of a published article that develops this theme: that poor resources given the criminal justice system, increases the probability of wrongful convictions in these ways:

  1. Prosecutors’ method of plea bargaining changes so as to produce more guilty pleas which increases the probability of wrongful convictions. Such change is an attempt to counteract overcrowded and lengthening pre-trial custody in very bad jail conditions due to very inadequate government funding of such facilities
  2. Procedural laws, such as those concerning the disclosure and admissibility of evidence, provide inadequate opportunity to challenge the reliability of evidence produced by complex technology.
  3. Therefore rules of procedure and practice always give way to, so as to compensate for, the lack of adequate resources, instead of holding firm to maintain the safeguards against wrongful convictions.
  4. The longer is pre-trial custody, the greater is the probability of a guilty plea, which increases the probability of wrongful convictions.
  5. The probability of wrongful convictions is increased by increasing numbers of defendants in the courts without lawyers, which is due to: (a) very poor government funding of legal aid programs; and, (b) law societies’ failure to attempt to solve the unaffordable legal services problem—the one aggravates the damage done by the other. And,
  6. The lack of coordination among: (1) governments; (2) the law of disclosure laid down by the courts; and. (3) law societies, is increasing the probability of wrongful convictions.

The article begins with my experiences as a Crown prosecutor (“a Crown”) in the criminal courts of Toronto in 1966-1976. It deals with the changes in, plea bargaining, disclosure to defence counsel, and the movement towards the abolition of the preliminary inquiry, and with Ontario’s grand jury until it was abolished in 1975. This summary provides excerpts from the section on plea bargaining. The full article is entitled: “No Votes in Justice Means More Wrongful Convictions.” (SSRN, pdf download).

Plea Bargaining beginning in 1966

As Crown prosecutors we never spoke to quantum of sentence. We followed the English practice laid down in, R. v. Butterwasser (1948), 32 Cr. App. Reports 81 at 87, which was also followed in other parts of Canada, e.g., R. v. Lapierre, [1976] N.S.J. 421, (NSSC, App. Div.), para. 32 (p. 45): “Crown counsel should never request a specific term of imprisonment and in this province it rarely happens that such is done.” Without “length of prison sentence bargaining” prosecutors have no plea bargaining power, except to discuss much less important matters with defence counsel concerning: (1) reduction of charges; and, (2) the type of sentence that might be recommended, e.g., prison, probation, a fine.

But the beginning of the Ontario Legal Aid Plan (which became Legal Aid Ontario by way of the Legal Aid Services Act, 1998, s. 3(1)), on March 29, 1967, meant many more accused persons had lawyers, which resulted in: (1) many more trials and a lot fewer guilty pleas; and as a result, (2) drastically over-crowded jails containing inmates awaiting trial; and, (3) shortages of staff in the Toronto Crown Attorney’s Office.

That jail over-crowding in terrible conditions such as in Toronto’s Don Jail, soon led to plea bargaining as we know it now, wherein the Crown’s recommendation as to length of sentence is taken as a “presumptive sentence”—a rebuttable presumption for defence counsel to overcome. In R. v. Smith, [2003] O.J. 1782, the judge described the conditions at the Don Jail as, “an embarrassment to the Canadian Criminal Justice System.” In R. v. Permesar [2003] O.J. No. 5420, the same judge stated that the Don Jail failed to meet the Standard Minimum Rules for the Treatment of Prisoners set by the United Nations, and he also provided a very detailed description of such conditions.

Such plea bargaining power enables the Crown to negotiate proposed trials to become guilty pleas instead. That is achieved by the threat of “the trial penalty,” i.e., the difference between the Crown’s recommended sentence for a guilty plea, and the much longer sentencing recommendation following the accused’s conviction at the end of a trial. But such power by threat, can force a guilty plea by an innocent person—see the wrongful conviction case of, R. v. Hanemaayer, 2008 ONCA 580, 234 C.C.C. (3d) 3. Hanemaayer pleaded guilty to receive a sentence of 2-years-less-a day in a provincial reformatory for a crime he didn’t commit, so as to avoid a threatened sentence of six years in a federal penitentiary, as would have been recommended by the Crown if he were convicted at trial. The Crown’s case was very weak, based as it was upon a photo-lineup identification process involving multiple errors in the way it was conducted.

Such wrongful convictions are very rarely discovered, and when they are: (1) it is long after the sentence is served; and, (2) they are inadvertently discovered, as was that of Hanemaayer, who had pleaded guilty almost 20 years earlier. It should follow that because such power of detection is almost zero, the laws of prevention should be made very strong. But political wisdom dictates that, “there are no votes in justice,” meaning, there are no votes to be gained by a government’s improving the justice system. And so, the rule of law is always weakened by way of a “cutting costs by cutting competence solution”—the competence of the law to do justice; ergo, from Butterwasser to Hanemaayer.

For greater detail as to how this “trial penalty” system works, see: (1) “The Triumph of Plea Bargaining,” (2011), 85 Criminal Reports (6th) 29; and, (2) “Plea Bargaining Is Sentencing,” (2009) 14 Canadian Criminal Law Review 55, particularly this exchange of comments between a Superior Court Justice and the Crown, which clearly shows the presumptive power given the Crown’s sentencing recommendations (at p. 59):

The Court: But it is well understood also that when the Crown sets out a penalty as being an appropriate one, it’s pretty rare for a judge to impose a higher penalty than what the Crown submits is appropriate, given that the Crown is making submissions based on caselaw.

Ms. [Crown]: Yes. Certainly. And I can indicate to Your Honour that the Crown’s position is certainly that if there were a plea prior to trial or within I would say, – – I’d be willing to indicate to both accused that within the next two weeks the Crown will indicate its position as to pre-trial penalty being sought versus the trial penalty being sought if there is not a plea entered.

And in, R. v. F.(J.K.), 2005 CanLII 5398, [2005] O.J. No. 812 (Ont. C.A.), the Court stated (para. 3): “In our view, exceeding the Crown’s submission without an adequate evidential foundation constituted an error in principle.”

So in effect, the sentencing function is turned over to the Crown as a way of coping with, increasing pre-trial jail populations, bad jail conditions, and case loads. That is not the “rule of law,” which is a principle entrenched in the constitution by the Canadian Charter of Rights and Freedoms (the Preamble, and s. 7).

The full article deals with:

(1) the misguided attempt to justify the Truth in Sentencing Act (operative from Feb. 22, 2010) re. Criminal Code s. 719(3)-(3.4) sentencing, as a means of reducing over-crowding in the jails so as to remove that problem from government expense;

(2) the shortage of prosecutors in attempting to relieve jail conditions by processing more cases per unit time, resulting in inadequate preparation time, e.g., as the Crown prosecutor, I had to conduct a jury trial given only ten minutes warning that I would be picking a jury, in regard to a file that I had never seen before;

(3) disclosure in 1966 by letting defence counsel see the “dope sheet,” to the R. v. Stinchcombe [1991] CanLII 45 (SCC) disclosure rule, and the inadequacies of that rule as a result of very complex electronic systems not being examined as to their reliability as sources of evidence;

(4) in regard to the use of such electronically-produced evidence, the lack of knowledge in the caselaw of technology and its complexity, and of its error-prone nature;

(5) in relation to decisions on the admissibility of such evidence, the unreasonable division made between the “minimal evidential burden” the Crown must satisfy to transfer an almost impossible-to-satisfy onus to the defence to produce “evidence to the contrary”; instead, the Crown should be required to produce witnesses who are accountable for those complex systems and subject to cross-examination;

(6) the resulting need for a right of the accused to a full preliminary inquiry to test the sources of evidence, instead of governments working towards its abolition, which would remove an important safeguard against wrongful convictions;

(7) a grand jury’s investigation of the inadequate resources given the Toronto Crown Attorney’s office and its report which resulted in a statement by the Attorney General in the Ontario Legislature that rejected the grand jury’s findings; (See the block of materials at, (1972), 18 Criminal Reports, New Series 1-76.)

(8) the points made in the conclusion are: (1) consistent with avoiding expenditures on the criminal justice system, the federal attorney general appeared to be neglecting the plight of pre-trial inmates in custody in extremely bad jail conditions, and the provincial attorney general appeared to ignore the needs of prosecutors for greater resources of staff and time in order to work adequately; (2) similarly, the other examples presented also support the proposition that the criminal justice system is inadequately resourced because there are “no votes in justice”; and, (3) the reduction in the safeguards against wrongful convictions caused by the radical changes in procedures made necessary because governments do not provide adequate resources for the criminal justice system;

(9) the further damage being done to the system by: (1) the very low income qualification levels for legal aid assistance, allows only extremely poor people to successfully apply for a lawyer; and, (2) the “unaffordable legal services problem,” which is causing an increasing number of self-represented defendants to appear in the criminal courts; together these two factors greatly increase the probability of wrongful convictions. The first factor is caused by poor government funding; the second, by law societies failing to attempt to solve the problem.

And several supporting articles are cited in regard to: (1) the use of electronic records technology to produce records as evidence, without regard to the serious, common defects in their software and records management and control, and the inadequate procedures for testing their reliability, and, (2) the unaffordable legal services problem, which is clogging the courts with self-represented litigants, greatly slowing the processing of cases, and increasing the probability of wrongful convictions.

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