Plea Bargaining - A Deal with the Devil?

The plea bargain is a deal with the devil — at least according to many members of the public. The public may be right, but the real question is: Just who is the devil in the plea bargain equation?

Let’s first take a step back and go over some basics.

In 1975, the Law Reform Commission of Canada defined a plea bargain as "any agreement by the accused to plead guilty in return for the promise of some benefit."

The essence of any plea bargain is a quid pro quo

So the quid: The accused gives up their constitutional right to be presumed innocent and waives their right to a trial. In other words, the accused relieves the state of the heavy obligation of proving guilt beyond a reasonable doubt.

After all, there is only one guarantee in criminal law — if you plead guilty you will be found guilty. 

And the quo: The accused receives the benefit of reduced charges, or less jail time or some measure of certainty about the ultimate sentence.

But it is not just the accused and the prosecution who benefit from guilty pleas. Plea bargaining is an essential lubricant in the justice system. 

Recently, in R. v. Anthony-Cook, the Supreme Court of Canada described plea agreements as “vitally important to the well-being of our criminal justice system,” without which the justice system would “eventually collapse under its own weight.”

So, everyone wins — unless you are the innocent accused who is induced into pleading guilty. 

The Criminal Code recognizes the fundamental importance that all admissions of guilt are fully voluntary. Before a court can accept a guilty plea, the judge must be satisfied that the accused is acting under their own free will. There is no arm twisting allowed in a plea court.

But all actors in the justice system turn a blind eye to all the subtle arm twisting that takes place outside the courtroom. In reality, many guilty pleas are not truly voluntary.

There is a massive power imbalance between the state and the accused. The state has an army of fully funded prosecutors, investigators and forensic experts. The state is never unrepresented in court, unlike so many impoverished accused. As a starting point, the playing field is far from level.

There are also perverse incentives that many prosecutors can unwittingly leverage to extract guilty pleas.

Take, for example, the case of a homeless accused who is charged with shoplifting. It is all too common for this type of offender to be warehoused in jail, unable to make bail. After a week in Dickensian jail conditions, the man is presented with two options: 

Option one: Plead guilty and walk out of jail today. 

Option two: Plead not guilty and spend three months in jail waiting for a trial. 

How can any plea in these circumstances be truly voluntary? 

Imagine this example: A father is charged with manslaughter in the death of his infant child. The father says he is innocent, but the Crown retains a respected and world-renowned expert who concludes that the child died of shaken baby syndrome. The Crown tells the devastated father that it will seek a lengthy penitentiary sentence if he is found guilty after trial — the father will lose his family, his job and a decade of his life. 

But there is a deal to be had. 

If the father pleads guilty, the Crown will agree to drop the charge from manslaughter to aggravated assault and will agree to only a six-month jail sentence.

This was the real-life choice faced by Richard Brant. He took the deal. Was there really a choice? 

It turned out that the world-renowned expert in Brant’s case was a man now known to be responsible for scores of wrongful convictions — disgraced former pathologist Charles Smith. In 2011 — 15 years after Brant pleaded guilty — the Ontario Court of Appeal found that a miscarriage of justice had occurred and entered an acquittal.

Here’s one more example. A hard-working, pro-social and otherwise loving husband is charged with domestic mischief. It is alleged that during an argument he grabbed his wife’s phone and smashed it. A neighbour called the police. 

Perhaps he was actually guilty or perhaps it was all a misunderstanding. 

His wife does not want to press charges, but once the police are called, it is not her choice. The husband is released from jail on bail, but, despite the wishes of his wife, he is not allowed to contact her in any way. He can’t move back home or see his children. The family’s finances are stretched. The husband is renting an apartment and waiting for his trial (with all the safeguards and fact-finding that such a process entails), but that trial is set for a year away. 

He can’t afford a lawyer, so he asks the Crown to agree to vary his bail conditions so he can move home. 
This is what everyone wants. 

A frequent response from the Crown is: If you plead guilty, we will agree that you can move home. If you don’t plead guilty, there will be no agreement.

These are the types of inducements that lead to wrongful convictions and questionable guilty pleas: 
release from jail, shorter sentence, reduced charges, contact with family and on and on and on.

In 2009, when Brant’s appeal was filed at the Court of Appeal, Justice Michael Code (he was a law professor at the time) called these questionable plea situations the “hidden underbelly of the justice system.”

Defence counsel can be tempted to assist their clients to take the easy way out and make these types of deals. And it is the easy way out — fighting is harder, more stressful and more costly. 

Make no mistake, there are some defence counsel who value a quick plea over a complicated trial.

But also make no mistake, increased responsibility must fall on the shoulders of our Crown attorneys to ensure that discretion is exercised appropriately and there are no improper inducements. 

After all, it is the Crown who holds the balance of power in most plea negotiations. It is the Crown who has the power to agree to a reduced sentence, drop charges, modify facts and modify bail conditions.

With greater power there also must come greater responsibility.

So to answer the question: The inherent power imbalance between the state and the accused provides a pretty powerful indication on who the devil is in most plea deals.

Naqvi: Solution to Court Delays - Call off your Crowns

There is a problem with delays in our justice system. This is true. It is also true that the criminal justice system is an insatiable beast — a black hole that will endlessly devour money and resources.
The fix to delays in our courts is not as easy as simply feeding the beast. But this was the solution proposed by Ontario’s Attorney General Yasir Naqvi earlier this month. Naqvi’s proposed solution of half measures including a handful of new judges and prosecutors is a Band-Aid that will not result in quicker justice.

The only real solution to court delays is to refocus and rethink how we use the justice system — maybe the beast needs a diet.

There can be no debate — delays in our justice system are a very bad thing. With every week, month and year of delay, memories fade, the quality of evidence degrades and victims are denied legal closure. 

And, often intentionally overlooked is the reality that court delays mean that accused persons who are presumed (and often are) innocent suffer ongoing stigma, stress, loss of employment, oppressive bail conditions and incarceration waiting for their trial dates. 

Let’s get one thing straight — there is not one accused person being held in our Dicken-sian provincial jails who is intentionally delaying their day in court. There is simply no benefit to do so. Ontario’s remand centres are violent, overcrowded, humanity-destroying hellscapes, which are completely devoid of any rehabilitation programming or basic human comforts.

No one wants to be in provincial jail waiting for their day in court and every presumed innocent but jailed client I have ever represented begs for a quick trial date.   

Naqvi’s high-profile announcement of 13 more judges and 32 assistant Crown attorneys will do little to ensure faster justice. To put those numbers into context, there are about 60 courthouses in Ontario. So, I look forward to the extra 0.2 judge that the Ottawa courthouse will receive.

Why did Naqvi even announce this ineffective half measure? The answer is simple —court delays are now a political issue.

The seeds of the new political hot potato were sown earlier this year with the Supreme Court of Canada’s decision in Jordan where hard caps were imposed for the amount of constitutionally acceptable pre-trial delay.

It seems the Ontario government was shocked when lower courts actually implemented the time limits.

Last month, an Ottawa judge dismissed a charge of first-degree murder following 48 months of delay and in September the Ontario Court of Appeal threw out serious assault charges after applying the Supreme Court’s delay decision.

When serious charges are thrown out of court, the accused loses the chance to clear their name, victims are denied justice and the public has every right to demand answers.

In short there is public out-rage when cases are thrown out of court — this is what gets the attention of the political class.

So let’s clear the air. The first-degree murder charge was thrown out of court because of the actions of the Crown attorney. The serious assault charge was dismissed because of the ac-tions of the Crown attorney.

The indictment of the Crown’s conduct in both cases was damning. In the first-degree murder prosecution, the assigned Crown refused to allow a colleague to conduct the trial despite the fact his own unavailability caused more than seven months of delays. In the court’s words, “the Crown chose to deliberately ignore delay.”

Maybe this should not have come as a shock. A month earlier, the Court of Appeal de-scribed the same senior Crown’s conduct as “a poster child for the culture of complacency to-wards delay so rightly condemned in Jordan” and a “failure to pay any real heed” to the Charter rights of the accused.

Any public anger should rightly be directed at the actions of the Crown. And this is where the government’s attention should be focused. A handful of additional judges and prosecutors will do little to change a systemic Crown culture of complacency, possessiveness and overzealousness.

The cure to court delays is simple — there must be a culture change at the upper levels of our Crown attorneys’ offices. Resources must be allocated appropriately and rationally. Minor charges should be diverted. Mental health and addiction issues — the root causes of many offences — should be treated and understood not prosecuted. Reasonableness and efficiency — when called for — should be rewarded.

Perhaps if the government and its prosecutors had spent less court time fighting a heavy-handed battle to extract a few dollars in victim fine surcharges from the poor and more time focusing on serious homicides, there would be quicker trials (and fewer charges dismissed due to unconstitutional delay).

Maybe if the government spent money to implement rehabilitative programs in our pro-vincial jails instead of simply warehousing impoverished and addicted offenders, there would be less recidivism and fewer matters in our courts to begin with.

We don’t need more prosecutors — we need more reasonable leadership in government and the ranks of senior Crown attorneys.

If Naqvi is serious about modernizing and streamlining our courts, if he is serious about ensuring faster justice, if he is serious about seeing that murder charges are never thrown out of court due to delays, he must do what is wholly within his power: He must stop feeding the beast and reign in his prosecutors.

The RCMP needs you scared — and the media seems happy to help

Long before email, metadata and GPS tracking, King Louis XIII’s hatchetman Cardinal Richelieu said: “If one would give me six lines written by the hand of the most honest man, I would find something in them to have him hanged.”

Nothing’s changed. The RCMP is back at the back door, lobbying the government for greater powers to access digital evidence — and now they’re using the media to make their case.

Recently, the RCMP self-selected 10 investigation files and fed summaries to the CBC and Toronto Star. Details that could compromise ongoing investigations (or be used by journalists to fact-check) were redacted. Both media outlets dutifully gave the Mounties the headline they wanted — one about how child predators, drug gangs and terrorists are escaping justice.

The RCMP’s proposed solution is, of course, more police power. It’s always more police power.

The RCMP wants laws that would compel suspects to hand over passwords, grant warrantless access to subscriber information and require telecommunication providers to build back-door intercept capabilities into their networks.

The RCMP’s sophisticated media campaign leverages the same fear that former Conservative public safety minister Vic Toews sought to exploit in the Bill C-30 debacle — the one that saw Toews demand that opposition MPs “stand with us or with the child pornographers.” In fact, some of the added powers the RCMP is now lobbying for were at the heart of Toews’ bill.

Public backlash undermined C-30 to such a degree that then-Justice Minister Rob Nicholson had to declare the government would “not be proceeding with Bill C-30 and any attempts [to] modernize the Criminal Code will not contain the measures in C-30 — including the warrantless mandatory disclosure of basic subscriber information, or the requirement for telecommunications service providers to build intercept capabilities within their systems.”

If the RCMP has its way, all of that will be back on the table.

Can we trust that the RCMP was honest when it was spilling its guts to the Star and the CBC? Probably not. After all, the Mounties didn’t disclose that they had been collecting data on aboriginal activists involved in the Idle No More protests. The RCMP labeled those people a threat to national security — the same, convenient, all-purpose justification the RCMP fed to the media this past week.

And CSIS? We already know it’s been lying about its use of metadata. Just weeks ago the Federal Court blasted CSIS for illegally and secretly retaining 10 years worth of metadata obtained from individuals who where not alleged to have committed any crime. Through what the court described as a “powerful program which processes metadata”, the spy agency was able to gather intelligence which revealed “specific, intimate details on the life and environment” of the target and could draw “links between various sources and enormous amounts of data that no human being would be capable.”

How many people were targeted? How much data was collected? Why was it collected? It’s all still a secret. This is how privacy and freedom are lost to the creeping security state.

At its most basic level, the RCMP’s argument is one of paranoid expedience. There is no doubt that digital backdoors and compelled passwords would help them solve more crimes. So would a master key to every house and a camera on every street corner.

In 2014, the Supreme Court found that the warrantless seizure of subscriber information was unconstitutional. In the year before the court’s ruling, Canadian police forces made an astonishing 1.2 million warrantless data requests to telecommunication companies without any oversight or rules about storage, use, or dissemination of that information.

This is the kind of power the RCMP wants to get back. And recent revelations about police surveillance operations targeting journalists ought to prove that police simply cannot be trusted with that type of power.

It’s easy to give up the rights of others. It’s easy to slip into the mindset that believes only those who are doing something wrong have something to hide. As privacy advocate Glenn Greenwald puts it, anyone who subscribes to that mindset is basically saying: “I have agreed to make myself such a harmless and unthreatening and uninteresting person that I actually don’t fear having the government know what it is that I’m doing.”

There’s a reason why even the homes of law-abiding citizens have blinds.

Electronic data — especially when collected en masse, retained and data-mined — will reveal intimate and personal details that are deserving of enhanced protection.

That is what the police want. That is what we would be all giving up. And that’s what Cardinal Richelieu understood about the surveillance state: It can always find a hook on which to hang even the most honest citizen.

Are the Liberals missing the will to change the status quo?

Last month at the 44th annual Criminal Lawyers’ Association conference, Canada’s Minister of Justice and Attorney General Jody Wilson-Raybould delivered the prestigious Spokina lecture. She said a lot of words. 

Wilson-Raybould told the audience that the Liberal government was intent on moving forward with restorative justice initiatives, reducing the over-incarceration of indigenous people and ensuring all of Canada’s criminal laws are in compliance with the Charter of Rights and Freedoms. 

The minister went on to speak of the need for transformational justice reform and highlighted the all-too-obvious problems of overflowing court dockets and the disproportionate criminalization and incarceration of minorities and marginalized groups. 

Next up was judicial discretion. Wilson-Raybould said restoring judicial discretion was an issue of the upmost importance — telling the crowd that justice cannot be a one-size-fits-all proposition. Specifically, she said that mandatory minimum sentences were a priority for change and promised that reforms were coming.

Wilson-Raybould’s speech was greeted with thundering applause and a standing ovation.

But not by me. 

I was not at the Sopinka lecture to hear the justice minister’s words. I was in my office — hundreds of kilometres away from the adoring crowds — preparing arguments for a constitutional challenge to the Conservative government’s retroactive pardon restrictions. Shockingly, the Liberal government’s lawyers are vigorously defending the Conservative law.

Words matter, but actions matter more.

Last January, Public Safety Minister Ralph Goodale described the former Conservative government as having “a certain ideology and a certain approach that needs to be re-examined.” Goodale went on to describe the retroactive pardon changes as “punitive” — his lawyers are now arguing exactly the opposite.

There have been words but no action by Goodale or the Liberal government on the pardon file — except to defend Stephen Harper’s ideological law. 

Malaise seems to be the modus operandi of the Liberal government when it comes to justice issues.

Take, for example, marijuana legalization. At the same time that Wilson-Raybould was quite rightly bemoaning the disproportionate representation of minorities and indigenous offenders in the criminal justice system, the prosecution of marijuana offences continues unabated. 

The irony would be delicious if it weren’t so tragic. Marijuana criminalization imposes unreasonable penalties on a relatively low-risk vice. And the distasteful irony is that those penalized are almost always those already marginalized — people living in low-income, over-policed communities and members of visible minorities.

Wilson-Raybould told the clapping lawyers that systemic racism must be routed out of the justice system as a disproportionate number of visible minorities are being arrested, prosecuted and jailed. 

If only she had the power to do something about it — except she does. Wilson-Raybould could call off her prosecutors or advocate for decriminalization while we wait for the endless Liberal marijuana consultation to conclude, but she has refused. 

Again, her words are not reconcilable with her actions.

The absence of any real justice reform has been shocking. But wait, you say, what about the newly announced legislation to bring fairness back to the victim fine surcharge, the backbreaking mandatory fine imposed on even the most marginalized and impoverished offender? 

In her speech, Wilson-Raybould agreed with an Ontario judge’s characterization of this measure as a tax on “broken souls.” Yet, it took more than a year for the government to introduce the simplest of legislation to fix the problem. 

And what about Wilson-Raybould’s “priority” — mandatory minimum sentences? The overwhelming weight of expert evidence shows that minimum sentences not only do nothing to prevent crime but actually result in an increased likelihood of recidivism. Minimum sentences actually make our streets more dangerous and represent myopic criminal justice policy born of a failed tough-on-crime ideology. 

For all of the justice minister’s words, there has been little concrete action.

As was the case with the victim fine surcharge, there are simple minimum-sentence fixes. In his last act as a member of Parliament, former Liberal justice minister Irwin Cotler introduced a private members’ bill that would allow judges to impose a fair and appropriate sentence, notwithstanding mandatory minimums. Cotler’s bill was one paragraph long — but Wilson-Raybould seems content to drag her heels while the Department of Justice looks for a “politically viable” solution.

At some point, when the gulf between words and actions is so vast, legitimate questions can and should be asked about the bona fides of the intentions of the speaker.

And they were — the day after Wilson-Raybould’s uplifting but toothless speech, the Criminal Lawyers’ Association presented the 28th annual G. Arthur Martin Medal to unparalleled criminal and civil rights lawyer Frank Addario who called on the government to take action:

Yesterday, the Minister mentioned she is going to do something about mandatory minimums. Fine, we’re waiting for the legislation. A good place to start, though, would be to direct your federal prosecutors to stop defending the remaining mandatory minimums in the Code.

While you are at it, how about if we get going on solitary confinement? It’s a form of torture. Let’s see some governmental impatience there.

[…]

If the Justice Minister who was here yesterday was still here, I would invite her to put a defence counsel voice in a senior public policy position. Do it now if you want to stop jailing First Nations people at an unacceptable rate. Do it now if you want to reverse the unacceptable incidence of wrongful convictions.

The answer is not missing. The will to change the status quo is what’s missing.

Now that is a speech for which I would have given a standing ovation.

Are the Ottawa Police Racist?

Are the Ottawa police racist?

The simple answer is yes – a conclusion supported by a new study: Race Data and Traffic Stop in Ottawa.

The study, authored by a highly respected research team from York University, represents the largest race-based data collection in Canadian history. And its findings are damning but not unexpected for a police force that has been embroiled in racial controversy.

The researchers examined 81,902 traffic stops between 2013 and 2015 and found that visible minorities were stopped by the police at a disproportionate rate compared to white drivers. Middle Easterners and Black drivers who each represent about 4% of the driving population were stopped 12.3% and 8.8% of the time.  In simple terms a driver of Middle Eastern decent is 3.3 times more likely than a white driver to be stopped by the police and black driver is 2.3 times more likely to be pulled and detained by the police.

But we knew this already. Or at least we should have.  The federal government has acknowledged, for example, that black men are disproportionately charged for minor marijuana offences and study after study has shown that visible minorities are more likely to carded - stopped by the police while simply walking the streets. 

So why should driving be any different?

Before we go on let’s take down the straw man. 

Not all police officers are card-carrying Klan members. The vast majority of police officers are not racists. Although some are – after all it was just last month that disgraced Ottawa police Sargent Chris Hrnchiar posted racists Facebook comments in the wake of the death of Inuit artist Annie Pootoogook.

The point of the visible minority traffic study was not to discover if a gang of racist officers was harassing minorities for kicks and giggles. Life is more complicated that that. In the real world villains seldom twirl their mustaches and laugh menacingly. The real point of the study – as was the case with carding and marijuana arrests – is to determine whether the actions of the police are guided by systemic racism.

Systemic racism is insidious and nefarious because it is hard to identify. Systemic racism is given life by our unconscious biases, our privilege, our irrational unacknowledged fears, and the very histories of our institutions.

In the case of traffic stops, however, the study’s data makes a pretty troubling case for the presence and prevalence of systemic racism in the police force.

And the response from the police to the alarming data is even more troubling.

Ottawa’s police chief Charles Bordeleau was quick to minimize any problems and asserted that the report did not find evidence of racial profiling. Except it did nothing to disprove it - sort of the opposite. The York University research team was clear that the huge disparity in traffic stops was “consistent” with a finding of racial profiling.

Bordeleau went on to say that there was no racial profiling because although minorities were pulled over more often than white drivers they were ticketed at the same rates. Bordeleau either has his systemic blinders on or is being intentionally obtuse about the data.

So let’s dig deeper.

What the study actually found was that when minorities were stopped by police, they “were more likely to face no further police actions when compared with the White group”. So minorities are pulled over more but charged less frequently than white drivers.

To put it in simple terms for Bordeleau - his police force stopped, detained, and questioned visible minorities for no reason way more frequently than it did white drivers.

This is made clear in the report, that is if Bordeleau even bothered to read it. The damning finding could not have been any plainer: “there was a greater propensity that [Indigenous, Black and Middle Eastern] racialized minority groups were traffic-stopped for nothing...”

That troubling finding should be cause for alarm. Stopping a disproportionate number of minorities for no reason is not proof that the Ottawa police force is not acting in a racist manner - exactly the opposite.

The Ontario Human Right’s Commission echoed the report’s findings, saying: “The significant disproportion in traffic stops is consistent with racial profiling and sends a strong message that work against racial discrimination must now translate into action and accountability.”

And the response from the police? Matt Skof president of the Ottawa Police Association – a man who represents hundreds of Ottawa police officers - described the concerns of Ontario Human Rights Commission as those of a ‘petulant child’.

Skof went on to say that nothing in report was surprising. On this we agree. But when asked how the police association would respond to the study Skof had no answer – well he did – “business as usual”.

Skof’s comments show where the roots of the problem lie – with people like him.

Ottawa’s police chief misinterpreted and misrepresented the study’s data.

Jim Watson, Ottawa’s usually vocal mayor, has been silent on the issue. But maybe that is to be expected - after all Watson described Sargent Chris Hrnchiar obviously racist comments about Indigenous Canadian’s as merely “bordering on racism”.

The systemic racism problem in Ottawa’s police force does not fall at the feet of individual officers – they are by and large good honourable people working in a broken system – but at the feet of those in power who deny its existence - people like Skof, Bordeleau, and Watson.

The problem is with our civic leaders. Just like Skof they seem to be content with business as usual.

So the more complicated answer is: Ottawa’s police officers are only very rarely racist but the institution certainly is.