3.7 Resolution Discussions

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

Revised March 4th, 2024

Table of contents

1. Introduction

Early and meaningful resolution discussions between Crown counsel and defence counsel are an essential part of the criminal justice system.

Resolution discussions may encompass a variety of topics including the strength of the case, possible defences, Canadian Charter of Rights and Freedoms violations, and the appropriate sentence or sentencing range. They may also serve to narrow the issues to focus the trial or avoid litigation altogether.

Crown counsel must not proceed with resolution discussions where there is no reasonable prospect of conviction, or it is not in the public interest to pursue the case. For a detailed analysis on this test, see Guideline 2.3 “Decision to Prosecute.”Footnote 1 If this test is not met, Crown counsel must not engage in resolution discussions, pursue resolution discussions, or accept a plea. Rather, Crown counsel must withdraw or stay the charges.

Since resolution discussions occur before trial, and typically before disclosure is complete, Crown counsel must be aware of the circumstances that contribute to wrongful convictions. This includes incomplete disclosure, and guilty pleas entered solely for the purpose of release or to benefit from a time-limited offer from the Crown. These principles are discussed in detail below.

2. Principles Guiding Resolution Discussions

Crown counsel must conduct resolution discussions with the public interest in mind, as well as the effective and consistent enforcement of the law. Crown counsel are advocates and quasi-ministers of justice. They must represent the public interest as knowledgeable and effective negotiators, while at the same time ensuring that the accused’s constitutional rights are respected.

The principles of openness, fairness, and restraint must govern any resolution discussion.

2.1 Openness

One of the more serious criticisms of resolution discussions (in particular, plea bargaining) relates to the secrecy and lack of accountability of the process, and the related concern that “private deals” occur that are subsequently ratified by the judiciary. This can result in public suspicion and cynicism.Footnote 2

The principle of openness stems from the concept that “fair and rational decisions are more likely to be perceived as fair and rational if their origins and underpinnings have been fully disclosed.”Footnote 3

The openness principle has at least three components:

  1. consulting, where appropriate, interested parties about a proposed resolution;
  2. upholding the open court principle; and
  3. adequately documenting the prosecution file.

2.1.1 Consulting interested parties

Crown counsel must consult interested parties where it is appropriate to do so.

Absent exceptional circumstances, Crown counsel must seek input from victims (where there is one)Footnote 4 and keep them informed about the nature and extent of resolution discussions.

The Canadian Victims Bill of Rights (CVBR)Footnote 5 gives victims the right to information upon request. In addition, the Criminal Code imposes obligations on the court to inquire whether the prosecutor has taken steps to:

In cases where an accused expresses a desire to plead guilty and the Crown has not yet had an opportunity to consult the victim, Crown counsel must consider seeking an adjournment so that consultation may occur.Footnote 9 Crown witness coordinators may be best positioned to have those communications because they are often in direct contact with victims and their family members.

It is also good practice to seek input from investigative agencies prior to engaging in resolution discussions. This is particularly important in serious or major cases.

It may also be necessary to consult the community in which the offence was committed. For example, Crown counsel may consult First Nations, Métis, and Inuit communities, as well as other community leaders or school representatives. This consultation should occur in cases where the offence or resolution position has a significant impact on the community, and when it is reasonably possible to do so.

Crown counsel may also be required to consult other stakeholders. For example, it may be appropriate to consult the relevant provincial prosecuting service, or PPSC headquarters. PPSC headquarters may connect counsel with a Department of Justice legal services unit, if required.Footnote 10

After consultation, the final responsibility for assessing the appropriateness of a plea agreement rests with Crown counsel.Footnote 11 If a plea agreement is reached, Crown counsel must make reasonable efforts to ensure that victims and investigating agenciesFootnote 12 understand the substance of the agreement and the reasoning behind it.

2.1.2 Upholding the open court principle

Public access to the justice system helps to ensure that justice is administered in a principled manner and in accordance with the rule of law. Therefore, where an agreement has been reached, Crown counsel should present the proposal to the trial judge in open court and on the record.Footnote 13 Where the agreement is a product of discussions that occurred during a judicial pre-trial conference, Crown counsel must put the relevant details on the court record.

While there is a presumption that courts are open, Crown counsel must be aware of statutory publication bans that may be applicable in a proceeding. For more on mandatory and discretionary publication bans, see Guideline 3.4 “Sealing Orders and Publication Bans.”

2.1.3 Documenting the prosecution file

Crown counsel must maintain a written record of all issues discussed at a resolution meeting. The record must be dated and kept in the file. The record must include offers made, agreements reached or rejected, and information provided to victims.Footnote 14 Maintaining a written record will promote a consistent and informed practice, particularly where multiple Crown counsel successively handle a file, while ensuring proper accountability and transparency.

Even when resolution discussions take place informally, Crown counsel must document the file when they are able to do so.

2.2 Fairness

The principle of fairness must guide Crown counsel’s resolution positions for all accused persons, regardless of whether the accused is unrepresented, represented, or may not be effectively represented. For example, Crown counsel should not take a higher sentencing position when dealing with a less experienced defence counsel versus a more experienced or effective defence counsel. Crown counsel must take care to ensure that they are fair to all accused, regardless of their circumstances.

2.2.1 The risk of wrongful convictions

Fairness means that the accused must receive core disclosure prior to any form of resolution discussions so that the parties are on equal footing. However, this may not always be reasonably feasible. For example, the accused may express a desire to plead guilty at an early stage, before disclosure is available.

Should an accused insist on pleading guilty before they receive disclosure, Crown counsel must turn their mind to the following risk factors:

These concerns are particularly important with an unrepresented accused.Footnote 17 If the accused is unrepresented, Crown counsel should canvass the availability of a defence counsel or duty counsel to speak with the accused.Footnote 18 Crown counsel must also be aware that First Nations, Métis, Inuit, Black, and other marginalized groups are overrepresented amongst the wrongfully convicted. Crown counsel must have a heightened awareness of this fact when engaging in resolution discussions.

If Crown counsel develop concerns about the lack of meaningful disclosure or an expedited guilty plea, alternatives to a plea of guilt must be explored. The alternatives must be reasonable in the circumstances.  For example, Crown counsel may, if appropriate, revisit their position on bail, encourage consultation with duty counsel, extend the expiry of resolution offers, or offer alternative measures.

Where the accused waives their right to disclosure, and insists on proceeding with a guilty plea, Crown counsel must ensure that the waiver is clear and informed. Crown counsel must confirm on the record that the accused waives their right to disclosure at the time of entering the plea. Crown counsel should also ask the presiding justice to conduct a formal plea inquiry pursuant to s. 606(1.1) of the Criminal Code.

Crown counsel must make complete notes of the circumstances and details of the resolution discussions, including any waivers. The notes must be placed in the Crown file.

2.2.2 Honouring communicated positions

Fairness includes the principle that Crown counsel should honour all negotiated agreements unless fulfilling the agreementFootnote 19 would bring the administration of justice into disrepute or is otherwise contrary to the public interest.Footnote 20

Fairness also includes the principle that an accused person is entitled to rely on resolution positions conveyed by the Crown. Therefore, only in a “rare and exceptional” case can Crown counsel repudiate a communicated position.Footnote 21 For example, Crown counsel may not be bound by a communicated position if it is based on misleading or incorrect information about material facts that were provided by the accused.

The decision not to fulfill an agreement and seek a higher penalty can only be made by the Chief Federal Prosecutor (CFP), after carefully considering whether the communicated position is contrary to the administration of justice or the public interest. The following factors will assist in this determination:

  1. The circumstances leading to the plea agreement, and any resulting prejudice to the accused;
  2. The seriousness of the offence;
  3. The strength of the Crown’s case;
  4. The range of sentences customarily imposed for the offence;
  5. The existence of aggravating and mitigating factors, and whether those factors justify a departure from the established range for the offence;
  6.  Any prejudice to trial fairness that the accused will suffer as a result of the repudiation and whether the accused can be restored to their original position; andFootnote 22
  7. The timing of the repudiation. If repudiation is to take place, it must be done expeditiously.

In cases where the Crown has communicated a position based on the Crown’s incorrect assessment of the evidence,Footnote 23 the CFP must consider this factor and not repudiate a communicated position absent exceptional circumstances.

If the CFP determines that repudiation is required, Crown counsel must inform defence counsel of the reasons for the repudiation in writing. These reasons may be disclosed in a court proceeding, should an allegation of abuse of process arise.Footnote 24

If Crown counsel determines that a more lenient sentence is justified based on facts presented to them, even though another Crown counsel communicated a higher sentence, all reasonable efforts must be made to consult with the counsel who made the original offer before communicating the new offer.

2.2.3 Other principles related to fairness

In addition to the three principles explained above, Crown counsel must also follow the principles outlined below:

2.3 Principle of Restraint

When determining the appropriate sentence for an accused, the principle of restraint under s. 718.2(d) and (e) of the Criminal Code requires Crown counsel to explore all available sanctions other than imprisonment that are reasonable in the circumstances. Crown counsel must be particularly mindful of the principle of restraint to avoid contributing to the overrepresentation of individuals from First Nations, Métis, Inuit, Black and other marginalized groups in the criminal justice system.

To this end, Crown counsel must avoid recommending “short and sharp” sentences because their utility in achieving the principles and objectives of sentencing is questionable. Short and sharp sentences also contribute to the problem of overrepresentation. Only in exceptional circumstances, may Crown counsel seek a short and sharp sentence. If Crown counsel seeks such a sentence, they must document the file to record their reasons.

3. Plea Discussions

Crown counsel may engage in plea negotiations where all three of these preconditions are met:

3.1 Charge discussions

Charge discussions may cover the following topics:

The following practices are not acceptable:

3.2 Procedural Discussions

Procedural discussions may properly include the following:

3.3 Scope of Sentencing Discussions

Sentencing discussions may cover the following topics:

Crown counsel must not convey a promise or an undertaking not to appeal the sentence imposed.

3.4 Agreements about the Facts

Where an accused decides to plead guilty, Crown counsel should rely on facts that are provable by admissible evidence. Crown counsel must read these facts into the record, or file an agreed statement of facts.

Crown counsel must not present facts that are of little or no significance to the charges and are presented solely to embarrass the accused.

Agreements respecting facts must not mislead the court and must not give the appearance of misleading the court. The following types of agreements are not acceptable:

3.5 Determining a Fit Sentence

In determining a fit sentence, Crown counsel must consider:

Each case must be decided based on its own facts and circumstances.  Crown counsel must weigh a person’s degree of responsibility against the seriousness of the offence, the impact the offence has on any victim or the community, and other relevant sentencing considerations as set out in the Criminal Code. In light of all of these factors, Crown counsel should consider whether:

Where the common law has established ranges for a particular offence, Crown counsel must be mindful of the Supreme Court’s direction that ranges are guidelines for a starting point and should not be seen as a “straitjacket.”Footnote 31

Departures from an established sentencing range may be appropriate depending on the unique circumstances of an individual case. For example, where there are significant mitigating circumstances, or the accused’s moral culpability is reduced, a sentence below an established range may be appropriate. Ultimately, any sentencing decision must reflect the particular circumstances of the offence and the accused. If Crown counsel determines that a departure is required, they must consult their team leader before entering into a plea agreement.

Before recommending that a fine be imposed, Crown counsel should take all reasonable steps to ensure that the fine is an appropriate disposition, including the accused’s ability to pay the fine, the length of time required to pay it, and the availability of a fine option program.

Crown counsel must be aware of the requirement to consult their CFP in circumstances as outlined in Guideline 2.6 “Consultation within the Public Prosecution Service of Canada”.

3.6 Joint Submissions

A resolution discussion may result in Crown counsel agreeing to present a joint submission as to the exact sentence. Crown counsel may do so if the joint submission will not bring the administration of justice into disrepute, and is not otherwise contrary to the public interest.

Crown counsel must put on the record the considerations supporting the joint submission, including all relevant aggravating and mitigating factors.Footnote 32 The Supreme Court of Canada has held that putting a thorough justification of a joint submission on the record is also important for public perception. This ensures that the court and the members of the public readily understand the reason for the joint submission.

When a joint submission is outside the range established by the common law, Crown counsel must inform the judge of all the circumstances of the case that justify the departure. This may include:

Judges may depart from joint submissions “only rarely,” and if the joint submission is so “markedly out of line with the expectations of reasonable persons aware of the circumstances.”Footnote 33 When a judge indicates a possible departure from a joint submission, Crown counsel should request an opportunity to make further submissions before pronouncing on the sentence.Footnote 34

4. Taking Into Account Background and Systemic Factors

Sentencing is highly individualized. Different sentences may be justified for different persons charged with similar crimes depending on the particular circumstances of the case and the accused.

Given that one of the fundamental principles of sentencing is proportionality, Crown counsel must consider whether broad background and systemic factors played a role in the commission of the offence.Footnote 35 While relevant to the formulation of an appropriate sentence, no one factor is determinative. Background and systemic factors must be considered in the context of all the other relevant purposes and principles of sentencing.Footnote 36

This means that Crown counsel must make reasonable efforts to gather relevant information in order to arrive at an informed resolution position. In particular when prosecuting a member of an overrepresented or marginalized group. This information may come directly from the accused (or their counsel)Footnote 37, or through pre-sentence reports as discussed below.

Crown counsel must also consider whether the victim (if there is one) is part of a group overrepresented as victims of crime.

Crown counsel must delicately balance all the competing interests fairly before communicating a sentencing position, and be mindful of the paramount principles and objectives of sentencing relevant to a particular case.

4.1 First Nations, Métis, and Inuit Accused

Crown counsel must consider information provided by a Gladue ReportFootnote 38, an enhanced pre-sentence report, and information provided by defence counsel in arriving at a sentencing position. This information may include community supports. Crown counsel must also provide the court with any relevant information in their possession about the accused’s background or unique circumstances. If the accused or the court requests a Gladue report, Crown counsel must not object.

Crown counsel may also seek the assistance of Indigenous court workers when exploring community-based culturally appropriate resources for the accused.

An accused does not need to establish a causal link between their Indigenous background and the offence committed. Gladue factors must be considered regardless of whether the accused has status or lives on a reserve. Gladue factors may include:

These factors must form the necessary context for any resolution discussion.

4.2 Charge discussions

Enhanced pre-sentence reports, or Impact of Race and Culture Assessment reports (IRCA), may be available for Black and other racialized accused persons. These reports can help the court better understand how poverty, marginalization, racism, or social exclusion has impacted the accused’s circumstances and the offence committed.

If the accused or the court requests an IRCA, Crown counsel must not object to the court receiving such reports. The information contained in these reports may serve to attenuate moral culpability, thereby assisting Crown counsel with determining a position on the sentence, and the court with imposing a fit and proportionate sentence.

5. Unrepresented Accused

Plea or sentencing negotiations with an unrepresented accused call for extreme care. In any discussion with an unrepresented accused, Crown counsel must ensure that a witness is present, absent exceptional circumstances.Footnote 40 It is especially crucial for Crown counsel to keep a detailed written record of all discussions in the file.

Crown counsel must inform the accused of their right to retain counsel and, where appropriate, advise them of the availability of legal aid. Crown counsel must also raise potential Charter and evidentiary issues that may arise from the facts or circumstances of the case.

Crown counsel may also inform an unrepresented accused of the Crown’s initial position on sentence in the event of a guilty plea. However, Crown counsel must not advise the accused whether they should accept the Crown’s offer. Discussions can only proceed if Crown counsel is satisfied that the accused is acting voluntarily. Moreover, Crown counsel must not take advantage of the fact that the accused is unrepresented by counsel.

If Crown counsel develop concerns about the accused’s ability to understand the extent of their jeopardy or their right to counsel, additional steps must be taken to encourage the accused to consult with counsel. Ultimately, Crown counsel must abstain from negotiating with the accused if they conclude that the accused does not understand sufficiently.

Crown counsel should advise the judge that the accused was encouraged to retain counsel. Crown counsel should ensure that the court record reflects what they said to the accused outside of the courtroom, seeking confirmation or corrections from the accused. This will ensure that the court record accurately reflects the conversation and agreement (if any).

Crown counsel should follow local practices to mitigate the risks regarding dealings with unrepresented accused. For example, Crown counsel may ask duty counsel to speak with an unrepresented accused. In the alternative, Crown counsel may request a pre-trial hearing in open court where a judge may assist in explaining to the accused their rights and options.

If the accused has agreed to plead guilty, Crown counsel must recommend that the presiding judge hold a plea comprehension hearing.

6. Narrowing the Trial Issues

Crown counsel must attempt to narrow the litigation issues as much as possible in cases that are proceeding to trial. For example, Crown counsel may identify foreseeable legal issues and seek defence counsel’s position on those issues. Crown counsel may also prepare a witness list, a summary of the anticipated evidence, and a list of issues from which defence counsel might make admissions.Footnote 41 It may not be possible to narrow the issues in all cases, but Crown counsel must make reasonable efforts to do so.

7. Judicial Pre-Trial Conferences

A system of judicially supervised pre-trial conferences exists in most jurisdictions, although the form may differ from one jurisdiction to the next. They are effective not only in encouraging the fair disposition of cases without a trial, but also in narrowing the issues in cases that proceed to trial.Footnote 42 Crown counsel are encouraged to take the initiative with court administrators to hold a pre-trial conference if the court has not done so.

Crown counsel are encouraged to be proactive and take all reasonable measures to ensure that such conferences are productive and useful. Some examples are outlined below:

Crown counsel may conduct guilty plea and sentence proceedings before the judge who presides over the pre-trial conference where there is a joint position on sentence or where both defence and Crown counsel consent to the pre-trial judge conducting the sentencing hearing.

If, during the pre-trial, the judge comments that they will impose a particular sentence if the plea proceeds before them, Crown counsel should consider the appropriateness of proceeding with the plea before that judge.Footnote 43 While the Crown should not participate in judge shopping, the objective is to proceed before a court that has not predetermined the outcome of the sentencing hearing before hearing all the facts.

Crown counsel should also ensure that the court record reflects that a judicial pre-trial conference regarding resolution has been held.

8. Delegated Authority to Prosecute

Different levels of government may have jurisdiction to prosecute when individuals are charged with offences under both the Criminal Code and other federal statutes arising from the same incident. Delegation of charges will typically occur in these circumstances to avoid separate trials or conflicting outcomes. It is customary for the prosecuting service having jurisdiction over the less serious offence to delegate authority to prosecute to the prosecution service having jurisdiction over the more serious offence.Footnote 44 The Director of Public Prosecutions (DPP) may also delegate the prosecution of an offence when there is a conflict of interest.

When delegation occurs, the prosecution service that delegated the prosecution retains ultimate control over the prosecution. This means that the prosecution service who has taken delegation remains ultimately accountable to the delegating prosecution service.

Therefore, when the DPPFootnote 45 delegates authority to the province to prosecute a federal charge, the DPP retains the right to be informed of the matter and assume the conduct of the delegated matter if there is disagreement on how the matter should be handled. It is the usual practice for consultation between the prosecution services to continue as needed after the delegation. In practice, this ultimate accountability means that the delegating prosecution service should be consulted on resolution discussions if:

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