Crown Resolution Discussions

Thanks so much for joining me today. I have an interesting discussion, which is a bit controversial in some people’s minds. And the first thing to understand is that, you know, a lot of people don’t realize this, but I would say at least 90% of criminal defense counsel’s work is actually negotiating resolution of cases where a client actually winds up pleading guilty or charges are withdrawn  or getting peace bonds etc.

Like, you know, the average criminal case in Canada when you receive it. And I’m not talking about DUI cases, and I’m not talking about sexual assault cases, but most other criminal charges in Canada are not defendable. The police have very solid evidence and the person doesn’t intend to go to court. Now in sexual assault cases, they’re usually always defendable, not always I shouldn’t say that, but they’re often defendable, like 80% of the sexual assault cases we get are defendable. Impaired driving is becoming less dependable over time, although there’s still defenses to impaired driving. The bottom line there is the Parliament has been tightening up defenses but we still find ways to win those. But let’s talk about resolution discussions, Crown resolution discussions and what happens here. So when I get a file, I get to the disclosure, I get the the clients disclosure, and I understand and get all the clients background that hopefully they’re a good previous character.

Hopefully they’ve never had a criminal convictio before. And I’m looking at the case and I say the lient, the client says he might have been guilty. I just want the best possible result. I said, there’s some weaknesses in the Crown’s case, you could go to trial. “No I don’t want to do that”. Well, what I can do is I can use the weaknesses in the Crown’s case, to start discussing and negotiating with the crown. Look, I’ve got a good client here. This is a fraud charge, but you don’t have the best case in the world. There’s an appropriate range of sentence for fraud, maybe a range of sentence for fraud of that level, maybe, it’s a high level fraud, as an example will be a one to your sentences. Because it’s a weak case.

The crown may say to me, look, I can agree in that range or even lower than one year because the crown thinks they have a reasonable chance of losing. So there’s all these discussions that go on where as a defense counsel, what you’re doing is you’re looking at the cost benefit analysis of going to trial. What are my odds of winning a trial, versus what is the Crown offering me to resolve this case? And in conjunction with your client, you’re assessing things and saying, this is a great offer. It’s up to you.

But we’ve got a great joint submission offer where we can get a very low jail term free or no jail or the charge on conditional discharge that depends on the defence. So these discussions go on all the time. It’s a lot of the work we do in any and defense counsel does for all sorts of charges. Domestic assault is a prime example. We’re always negotiating hopefully to avoid criminal record and more minor charges. A lot of DUI still go to trial though, but we’re often negotiating sometimes to drop the charges because they’re so weak.

You know, careless driving, we get a lot of times so we’re always having these meetings with the Crown we’re reviewing the whole file, the clients background, sometimes we’re getting psychiatric reports from the client, counseling reports, employer letters, all this stuff has to be presented, and sometimes will then go on to a crown pretrial or I should say judicial pretrial, where we meet with the judge to approve the deal. I think the pejorative or term of the people don’t like and use is plea bargain in the States, but it’s not really that. This is a proper negotiated sentence. I mean, the Crown’s got a weak case the Crown knows that they should offer this. If all these cases went to trial, our system would totally collapse. We have to resolve cases properly.

We have to resolve them in an appropriate range of sentence. And there’s ranges of sentence for each matter. So for example, if a person if there was a minor sexual assault involving, say a buttock touching at a bar, that range of sentences, you know, either very short jail probably even no jail, maybe even a conditional discharge. We don’t throw a person in jail for two years for that. And this applies to every criminal charge.

And I don’t know why the public gets a bad view of resolution discussions because I know the system would collapse. There’s not enough judges to handle 1000s of crimes going to trial, because the Crown’s asking for a life sentence or the Judge is going to give a life sentence on each one. That’s not the way our system works. So, so that’s a very big part of defense counsels work. You have to understand how to negotiate properly.

You have to understand hopefully which crown to approach by way some cities you can’t pick your Crown as soon as you can. It’s helpful if you know the local judges who try and appear in front of again, in some cities, we can’t pick our Judges and others we might have some information to pick certain judges who are going to give a lighter deal.

And, and really, I would say, probably well for sexual assaults I’m sure 60% or more actually, way huigher that go to trial that come to us probably 90% Because people never admit they’re guilty, it seems and some maybe truthfully innocent for sure of sexual assault. Impaired driving, a very high percentage used to go to trial, fewer were resolving a lot of cases. But again, a little known fact, this is a huge percent of defense counsel work is being able to intelligently and successfully negotiate the best possible outcome or result for your client. And oftentimes that results in dismissal or withdrawal the charge because if I get a weak case, I’m going to go to the Crown say, look, you’ve got no case here. Look at this case, there’s no reasonable prospect of conviction. That’s a test, if I can convince a Crown there’s no reasonable prospect conviction, they’re going to withdraw the charge. On a DUI, for example, if there’s no reasonable prospect of conviction, they might offer a careless driving or withdrawal the charge, same for any other type of offense.

So that’s a short kind of trying to defend plea bargaining. If I might put it that way. Let’s call it Crown resolution discussion. It’s totally appropriate. It’s valid, and you’re just getting the appropriate sentence for this offender and for their particular background. And for the strengths and weaknesses of this case, and the gravity of the crime. We don’t throw people in life sentences for a minor, which is serious, don’t me wrong, a buttock grab, but they deserve to be punished for that, but it’s not a life sentence. Let me put it that way. So I’m just trying to deflect some of the criticism for our resolution discussion system which is really actually working very well in Canada. And I just want to thank you for joining me today.