Hey there, time traveller!
This article was published 21/11/2013 (2728 days ago), so information in it may no longer be current.
Manitobans have questions in the wake of allegations the Crown dropped charges against Shawn Lamb for the sexual assault of a 14-year-old girl as part of a bargain that saw him plead guilty to manslaughter, rather than murder, for the unrelated homicides of Lorna Blacksmith and Carolyn Sinclair. Concerns have been expressed that the charge in relation to Tanya Nepinak's death will also be stayed as part of the same package.
This episode has focused attention on the common and controversial practice of plea bargaining.
The prevalence of plea bargains today is largely pragmatic. The majority of charges are resolved without a trial through guilty pleas and the withdrawal of other charges. Quite simply, if all charges went to trial, the system would collapse.
Yet the ubiquity of plea bargaining is relatively new. In 1975, the Law Reform Commission of Canada criticized the practice, saying justice should not be "purchased at the bargaining table."
A bargain entails an agreement in which both Crown and defence give something up. The accused gives up the right to a trial and the Crown stays some charges or seeks a lower sentence than might otherwise be possible. But, not all agreements are true plea bargains. Some are simply joint submissions on the appropriate sentence without the Crown giving anything up in exchange for the accused's plea.
There are advantages to a system that encourages resolution of charges before trial. Trials are costly in fiscal and human terms. Plea agreements are efficient, reduce court costs, and provide an element of certainty to all parties. Witnesses do not have to testify, which can be traumatic. A guilty plea is seen to convey remorse and is therefore a mitigating factor in sentencing.
However, plea bargaining carries some risks. Deals are reached behind closed doors and there is often little discussion in open court about the reasons behind the agreement. Prosecutorial discretion is strongly protected in our system, meaning we do not know much about the reasons for proceeding to trial with some charges, taking pleas to others, and staying still others. We have little research on the subject but studies in the U.S. indicate prosecutorial discretion is exercised unevenly on the basis of race.
Defence counsel may be motivated to plead clients guilty contrary to the clients' best interests. Where an accused is faced with a lengthy mandatory minimum sentence, the possibility of pleading to a lesser charge with a lower sentence can be irresistible, even if the accused is innocent. An unregulated system of plea bargaining increases the risk of wrongful convictions.
In addition, victims have historically had no role in plea bargaining. However, Manitoba is a leader in Canada as the only jurisdiction to provide victims of crime with a right to be consulted in the bargaining process. And while the involvement of victims is a step toward greater transparency, the questions swirling around the Lamb plea bargain indicate more could be done.
A report by the Law Reform Commission of Canada in 1989 recommended a formal process by which courts scrutinize plea bargains to ensure the interests of all parties -- accused, victim, and public -- are adequately protected.
A quarter century later, plea bargaining remains largely unregulated, although the judge always retains discretion to depart from a joint recommendation and in doing so should inquire into the circumstances underlying the bargain. We know judicial decisions to order a different sentence are rare. But beyond that, we know relatively little about the operation of plea bargaining in Canada. The last significant study on the subject was conducted over 30 years ago in Toronto.
In a high-profile case such as Lamb's, the issue is one of public confidence in the justice system and a perception, warranted or not, that charges in relation to two victims are being sacrificed for expediency in another case. Where the victims are aboriginal women, the concern about being forgotten victims becomes more acute.
At the same time, the everyday machinations of sentencing court churn out guilty pleas by the thousands, often in relation to low-level offences. Greater transparency in the process may lead to more rigorous, early screening of charges, better utilize resources, and promote public confidence in the system.
-- Debra Parkes is associate dean in the faculty of law, University of Manitoba.