The practice of plea bargaining is often denounced as “extortionate” or “corrupt” and “oppressive.” Add to this a claim from Manitoba this week that the version practiced in Canada is secretive. The picture painted is one of shady backroom deals with no accountability. The criticism of plea bargaining overstates the problems.
Plea bargaining, a practice when the prosecution and defence lawyers try to resolve the case without going to trial, is not a secret. Each side argues its position in an effort to negotiate their way to the best possible outcome. When the bargaining succeeds each side gets a result that serves their interest.
To avoid misunderstandings most Crown counsel explain publicly why the overall plea deal was in the public interest. Putting these reasons on the record allows the public to understand why the decision was made. Often the explanation is no more complicated than “we couldn’t prove the most serious charge” or “we wanted to avoid a lengthy trial but still get a conviction.” Viewed in this light, plea bargaining is not unfair or secretive but a practical solution to a busy criminal court docket.
Plea deals are a fast, certain way for offenders to be held accountable. If the system needs reform (such as creating an institutional obligation to explain decisions publicly), there can be no complaint. But those who want to throw it out for lack of transparency have missed the point. The system cannot function if the complainant who accuses or the police who charge are running the negotiations.
Next week, we’ll take a look at the real problems with plea bargaining in a mandatory minimum world.