Negotiating a Plea Bargain

Negotiating a plea bargain. Does this actually happen or is this just on TV?

Mark: Hi, it’s Mark Bossert from Top Local Lead Generation and we’re talking with Troy D. Anderson, criminal defence lawyer in Vancouver, BC. How you doing today Troy?

Troy: I’m doing very well, and you?

Mark: I’m good. So today we’re going to be talking about plea bargains and being a cop show aficionado, boy there’s a lot of weird things that go along with that. How true is some of that stuff about plea bargains and what happens under questioning with the police?

Troy: Well, I think you’re talking about a couple different things – under questioning with the police is something that would happen very early in the investigation – so that’s probably a topic for another whole discussion. Plea bargaining is something that occurs between the lawyers once the charge has been laid. So when we’re talking about plea bargaining, we’re talking about the period after you’ve been charged in the lead up to your trial. It can occur at the very beginning, for some people it occurs before they’ve even had a bail hearing depending on what their instructions are. For many people it occurs in the immediate aftermath of them being charged after they’ve had their bail hearing but before the matter is set for trial. And that’s the most common time to have a plea bargaining discussion. For example, on a simple matter, you may been charged with theft for example, so it’s alleged that you have been shoplifting and you retain a defence lawyer. Your defence lawyer will approach the Crown to discuss among other things your own personal background, the sorts of things that put you in the situation that saw yourself getting arrested and will look at the strength of the Crown’s case. Si what I typically do, is I get a copy of the police report and all the supporting documents, the witness statements, the photographs, the video taped evidence and the like and we go over it with an eye to preparing for a trial and if there is an avenue to explore then we do it at that time. So for example, the best plea bargain you can get is when you get the disclosure and there’s a defence available that is bullet proof and at that point you may choose to go to the Crown and say, “look this is the defence and this is why you can’t win”. The ultimate plea bargain is the one that results in the charge being dropped. More common is when you’re dealing with a Crown prosecutor that you know and trust, you will point out to them what we call are the weaknesses in the Crown’s case. So there may be an issue with regard to identification for example, that is, is there weaknesses in proving your client was the one that committed the crime. There may be weaknesses in some of the technical evidence and if you’re dealing with, particularly an experienced, Crown prosecutor and someone you can trust, you can have that frank discussion which may result in a plea to a lesser offence for example and may result in a vastly reduced sentence because you are being given credit for not putting the Crown to the proof of their case. If they’re convinced that they may lose, that’s the time where you can get some pretty good deals. So yes, plea bargaining does happen and frankly if there wasn’t plea bargaining, I think the Courts would grind to a halt because if everyone asserted their rights to a trial we would never get anything done. I think the statistic is something in excess of 90% of people charged eventually plead guilty.

Mark: Wow, so I guess that sort of leads into the obvious question, why would I consider a plea bargain?

Troy: Well, most of the time you would consider a plea bargain – the first question that I always ask a client is – ‘look, have you done anything wrong?’ – because if the answer is no I have not, then I don’t even explore a plea bargain. A plea bargain presupposes you have committed an offence. It may not be the one you’ve been charged with but you have to have committed an offence. A classic example is you’ve been charged with drunk driving, you don’t admit to drunk driving but you do admit to some bad driving which may give rise to a plea, for example, under the Motor Vehicle Act instead of the Criminal Code. And so as long as you are prepared to admit to some sort of wrong doing there is generally something that can be at least explored in regard to a plea bargain. So the question is why do you get it? Well for many people it’s certainty, so instead of for example, instead of being charged with impaired driving, rolling the dice to try to win at trial which you may or you may not depending on how the evidence looks and what your own story is going to be – you may choose the certainty of paying a fine and maybe even getting a short driving suspension under the Motor Vehicle Act instead of running the risk of a Criminal Code. If you’re charged with a minor offence, you may choose to participate in the Alternative Measures Program rather than risk a criminal conviction for for example, theft or assault. The most extreme example which occurred in a case that I did a few years ago, a fellow was charged with first degree murder and part way through the evidentiary hearings some of the Crown’s evidence was excluded and he was offered a plea to manslaughter and he took that plea of course, because he received a sentence of, I think it was about six years instead life in prison with no chance of parole for twenty five years. So, yes there are very, very compelling reasons to accept a plea bargain in the right circumstance. I tell my clients, most of the time there’s a deal available, it just depends if it’s the right deal for you.

Mark: I know often, in our legal system we call things different than what they are, what are commonly understood because of our watching American tv – so is it called a plea bargain in the law system here?

Troy: Well, not really I mean, there’s a lot of things we call it, the most common thing you hear in Court is discussions toward a resolution or resolution discussions or something to that affect. We don’t really call it plea bargaining, I never understood why we don’t call it that. The terminology seems to revolve around resolution discussion, but essentially it is the same.

Mark: Alright, is there anything else you would like to say about this particular subject?

Troy: Well, what I always tell my clients to keep in mind if you’ve been charged with a crime or if you think you’re going to be charged with a crime, is to keep an open mind and let your lawyer explore whatever avenues he or she can. So I tell my clients, look, unless you’re going to tell me “I have absolutely done nothing wrong at all” then I am going to explore a plea. You will learn what is being offered at some point but what I appreciate is my clients give me the freedom to do that so they can make an informed decision about what they are instructing me on. So for example, somebody may say, I’m not pleading to impaired driving because I’m a bus driver, for example, and I can’t have an impaired driving conviction. Well, that doesn’t necessarily preclude me from exploring something else that may allow that person to keep their job. I always tell them, let me do my job and then I will come to you to get some instructions on how we proceed from here and while that’s going on, there may be other things the client doesn’t know about for example – there may be proceedings in civil forfeiture that is going on in the background. For example if you’re charged with a drug offence, you may be looking at possible plea negotiations, but there may also be some civil forfeiture proceedings going on that may result in the government trying to take your house, your car or even money. You also have to keep that in mind – what other potential proceedings are ongoing and what are the complete consequences of a conviction whatever that may be. An example that many people rely upon, particularly in dealing with domestic assaults, is they may be asked to consider agreeing to a Peace Bond under section 8:10 of the Criminal Code which works very well for a number of people but not if you’re a school teacher or not if you’re a day care operator because it carries ramifications when you go for a criminal record check if you’re trying to work with vulnerable people. So there’s a great deal of things that go into plea negotiations, a great deal to consider and I think it’s important that you get legal advice with regard to everything surrounding the plea negotiations before you make a decision. I think in many cases, it’s good to in the very least no matter how simple or how trivial perhaps the offence may seem, get some legal advice so you know exactly what you’re getting into.

Mark: Yeah, it seems that the water gets deep pretty fast and having a lawyer on your side is probably a really good idea if you’re in any kind of trouble.

Troy: Well, you know if it was my first time swimming I’d want the life guard there with me.

Mark: Exactly. So thank you Troy. We’ve been talking with Troy D. Anderson of – you can reach Troy at 604-638-9188 and Troy would be happy to discuss all issues of your case that might be coming up and he’ll look after you. He’s one of the best lawyers in BC. Give him a call. Thanks a lot Troy.

Troy: Thanks Mark

Mark: Talk to you next week

Troy: You bet