Plea bargains lead to bad justice

R. v. Kumar, 2011 ONCA 120 is another tragic case arising out of the Charles Smith debacle.

The Court held that a guilty plea could be set aside even though it was knowingly made and fully informed because of the “interests of justice”.

A passage from the decision is below and there is no doubt that the circumstances were compelling but quaere, how common is the situation?

An accused is offered a deal. They can plead to a minor offence and avoid jail. Recognizing that less than four cases in a hundred in adult criminal court result in an acquittal (See Roach, Criminal Law (4^th ed), 2009 Irwin Law) anyone turning down an offer for a plea to a lesser offence must have nerves of steel.

The truth is that the courts cannot operate without plea bargains – the system would collapse without them – but plea bargains create perverse incentives. They urge the Crown to make offers that are too low and for the innocent to plead guilty. In theory the criminal system is supposed to award justice and not deals – yes a plea can show remorse and justify consideration but, look at Hanemaayer – why should a plea turn a ten year sentence into a 90 day sentence? That’s not a reduction for remorse – that’s a reduction to keep the system flowing smoothly regardless of “justice”.

I do not have a suggestion for how to replace plea bargains but they undermine a system that is supposed to do justice:

[34] As this court explained in R. v. Hanemaayer (2008), 234 C.C.C. (3d) 3 and R. v. T. (R.) (1992), 10 O.R. (3d) 514, even though an appellant’s plea of guilty appears to meet all the traditional tests for a valid guilty plea, the court retains a discretion, to be exercised in the interests of justice, to receive fresh evidence to explain the circumstances that led to the guilty plea and that demonstrate a miscarriage of justice occurred. In our view, this is one of those cases. The circumstances are compelling. At the time he pleaded guilty, the appellant was facing a charge of second degree murder. He was relatively new to Canada and was unfamiliar with the language and the legal system. At the time of the infant’s death, his wife had just returned from hospital after major surgery for a brain tumour. He was facing loss of his liberty for at least ten years, loss of custody of his remaining child and deportation. Competent counsel had been unable to obtain opinion evidence to refute the opinion of the then leading expert in the province that the appellant had intentionally caused the death of his child. Like in Hanemaayer, the appellant faced a terrible dilemma. The justice system now held out a powerful inducement: a reduced charge, a much-reduced sentence (90 days instead of a minimum of ten years), all but the elimination of the possibility of deportation, and access to his surviving child. Given the persuasive value of the fresh expert evidence that shows that the conviction was unreasonable, this is a proper case to set aside the guilty plea to avoid a miscarriage of justice.