Is the Glass Half-Empty or Half-Full? An Exploratory Study of Defence Lawyers’ Constructions of Plea Negotiations and Accused Persons’ Rights within the Ontario Criminal Justice System
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Plea bargaining is a pervasive practice in North American legal systems, as well as internationally. In Canada, the majority of criminal cases are disposed of by plea negotiations. Although plea negotiations are a staple within the Canadian criminal justice system, the practice has been continually critiqued in relation to accused persons’ rights. Scholarship existing on the topic typically suggests that plea bargaining negatively impacts accused persons because of the existence of a trial penalty. Using a descriptive exploratory methodology, the present study conducted in-depth interviews with 25 defence lawyers from across Ontario to understand how they construct the trial penalty and the role of remorse and accused persons’ rights with respect to plea bargaining. The present study found that from the perspective of lawyers it is not simply that a trial penalty either ‘exists’ or ‘does not exist’. Rather, their voices point to the deep and complex layers that exist within the practices of plea negotiations, trials, and sentencing. There is no simple formula that a lawyer can use to determine how things will turn out at trial. Instead, various factors, such as the nature of the offence, the offender, witnesses, complainant, court time, court resources, and the economic and administrative demands of an overburdened justice system interact together to create a complex dynamic that the lawyer must assess and present to the client. Ultimately, running a trial is presented to the client as a gamble; yet, in many instances taking the gamble was constructed as being worth the risk. However, findings from the present study also demonstrate that while lawyers continuously expressed the importance of trials, the reality of the situation is that accused persons, for a wide variety of reasons, are often incentivized to plead guilty, even when it is not in their best interest. These decisions have tremendous impacts on the lives of those accused of criminal offences or awaiting trial. Further, certain disadvantaged accused may be more greatly impacted by the criminal justice system, particularly Indigenous and Black populations who are overrepresented within the incarcerated population, as well as accused persons from low socioeconomic status and those who are remanded to custody awaiting trial.