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Dangling the Keys to Freedom: Prosecutorial Discretion, Deep-Discount Offers, and False Guilty Pleas

Author: Laila Azizi Guest Blogger

In late December, Slaw received two recommended Op-Ed submissions from David Tanovich‘s legal ethics class at the University of Windsor. Today, we’re running them both. 

One hundred and eighty days. That is how long Richard Catcheway, an Indigenous accused, sat in a prison cell for a crime he did not commit. Five to eight years. That is the prison term Casey McIlvride-Lister avoided by pleading guilty. Then we have Dinesh Kumar who avoided a life sentence by taking an offer of 90-days to be served intermittently. While factually dissimilar, Richard, Casey, and Dinesh share a connection: they were innocent but chose to plead guilty. The other connection? An attractive plea deal was offered by the Crown.

False guilty pleas raise deep, unresolved, and vexing issues about prosecutorial discretion. Is it unethical for a Crown to offer a “deep-discount” resolution? This question is the implicit thread that runs through these three cases. While there are a handful of recognized false guilty pleas in reported Canadian jurisprudence, it is estimated that they are entered “hundreds of times a day.”

What gives this issue its vexing quality? It is the tension that exists between conflicting ethical duties. On the one hand, as the SCC held, prosecutorial discretion ought to be protected because it facilitates the Crown’s ethical mandate to seek justice and to fulfill their quasi-judicial role as ministers of justice. Exercising this discretion and making resolution offers are “vitally important to the well-being of our criminal justice system…”.

On the other hand, the Ontario Rules of Professional Conduct stipulate that Crowns ought to act for the public and the administration of justice both resolutely, honourably, fairly, and dispassionately. Even the Crown Prosecution Manual stresses that the Crown’s responsibility is to make decisions objectively with “the highest standards of professionalism.” Did the Crowns in question fulfill their ethical and professional obligations when a “deep-discount” offer was made, effectively inducing otherwise innocent people to plead guilty? The answer is unequivocally, no.

One need not look far to find arguments in support the Crown’s plea position in these cases. Proponents will jealously guard the idea of prosecutorial discretion maintaining that without it, the system would crumble beneath its own weight and system efficiency would suffer. Attractive offers keep the wheels turning.

But let’s call a spade a spade. The Crown’s position of 90 days intermittent in lieu of life in Kumar and 3 years jail compared to 8 to 10 years after trial in McIlvride-Lister will undoubtedly have a coercive effect. Both individuals maintained their innocence but in the face of uncertainty, and a much-reduced sentence, they plead guilty.

Kumar faced deportation, the possible loss of access to his surviving child, and was the sole caregiver for his wife who was diagnosed with a brain tumour. McIlvride-Lister was a transgender woman whose concern about what institution she would be housed in “played a huge role” in the plea negotiations. These were unconscionable deals.

Catcheway plead guilty notwithstanding the fact that he was incarcerated at the time of the offence. This case is a symptom of a larger, unresolved systemic issue. Recently, the Court of Appeal for Ontario has taken judicial notice of the fact that Indigenous people plead guilty at “materially higher rates” than their non-Indigenous counterparts. Tempting resolution offers are particularly concerning for this population.

In no way are the following solutions the panacea to false guilty pleas. Until Crowns engrain reconciliation, fairness, and respect in their broad discretionary power, even the best solutions will simply be a symbol of good will. Until then, what form might these solutions take?

Crowns should be mandated to engage in “fixed offer” plea bargaining. This approach requires the Crown to not only review the disclosure associated with the case, but to solicit and consider the defence’s position. Crucially, the Crown must treat this offer as final meaning she cannot seek a higher sentence after trial.

In McIlvride-Lister, the Crown offer was made the very day the accused and her lawyer discussed the possibility of a guilty plea. Not only was a careful review not done, but a condition was that the stakes would increase after trial. The fixed offer approach would also have likely prevented the egregious error in Catcheway, as the Crown would have been mandated to assess the entire file which would have explicitly outlined his detention status. In the interests of efficiency, many Crowns simply conduct a superficial review of a file before making an offer.

Intervention by the Law Society of Ontario is needed. To account for the solution presented, Rule 5.2-3 could be amended by incorporating the “fixed offer” approach in addition to the following:

Commentary [2] During plea negotiations, the Prosecutor shall keep in mind the materially higher rate at which Indigenous people plead guilty.

The justice system was already skilled at encouraging innocent people to plead guilty. The concern has been amplified in the wake of COVID-19 as the Crown’s office is now armed with a new set of policies, allowing it to offer even more lenient sentences to relieve the backlog of cases. The collateral effect is that innocent people are, again, being offered resolutions that are simply too good to pass up. Without harnessing the expansive discretion enjoyed by the Crown, the deals will just keep getting better, adding to the ever-increasing false guilty plea statistic.

Laila Azizi
3L, Faculty of Law, University of Windsor

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