A central feature of Canadian national identity is our commitment to the rights and freedoms set out in the Canadian Charter of Rights and Freedoms—the document that strives to ensure that our society remains free and democratic.
One of the most crucial rights the Charter guarantees is the right to a trial. According to section 11(b), “Any person charged with an offence has the right…(b) to be tried within a reasonable time.”
However, there are certain situations when the right to a trial is waived. For example, an accused facing criminal charges might opt for a plea deal instead, avoiding a judge or jury.
The Plea Deal: What It Is and How It Works
A plea deal has been defined by the Law Reform Commission of Canada (now the Law Commission of Canada) as “an agreement by the accused to plead guilty in return for the prosecutor’s agreeing to take or refrain from taking a particular course of action.” This agreement results from a negotiation between the Crown prosecutor and the defence counsel. In a plea deal, the accused might, for example, agree to plead guilty to reduced charges to avoid a trial (thereby foregoing their section 11(b) Charter right to a trial).
When Does Plea Bargaining Take Place?
Plea bargaining is very commonplace in the criminal justice system. It generally occurs before the date of trial. However, a plea deal can also be struck during a trial, especially in light of fresh evidence that could be damaging to the accused’s case.
3 Types of Plea Deals in Canada
Plea bargaining can be broken down into three main categories:
1. Charge Bargaining
In charge bargaining, the parties might reduce the charge to a lesser offence or withdraw specific charges. For example, if an accused is charged with several offences—impaired driving, reckless driving, and assault—the parties might agree that if the accused pleads guilty to the impaired driving charge, the Crown will drop the other two. Doing so would allow the Crown to avoid the unpredictable outcome of a trial and the accused to avoid penalties associated with reckless driving and assault.
2. Sentence Bargaining
A plea bargain can also revolve around penalties rather than criminal charges. For example, the deal might allow the accused to plead guilty to charges as a summary conviction offence rather than an indictable offence, since the latter is considered more serious and carries harsher penalties.
3. Fact Bargaining
Finally, in fact bargaining, the Crown might agree not to raise specific information that could be detrimental to the accused during the sentencing hearing.
Stages of a Plea Deal
The plea bargaining process generally occurs in five phases:
- The parties negotiate a plea deal: The Crown prosecutor and defence counsel discuss potential plea options. They consider numerous factors, such as the strength of the evidence against the accused, the seriousness of the offence, and the possible outcome of a trial.
- The parties present the plea deal in court: After they agree to the terms of a plea deal, they present their recommendations in court. For this stage to proceed, the accused must have a complete understanding of the plea deal and its consequences.
- The judge approves or rejects the plea deal: The judge is not bound by the plea deal; if they feel it is unreasonable, they might reject it or suggest amendments. But in the majority of cases, the judge accepts the plea deal.
- The accused enters a guilty plea: The accused pleads guilty to the agreed-upon charge in court.
- The judge sentences the accused: The judge conducts a sentencing hearing to ascertain the appropriate penalties for the accused’s crime.
Why Would the Crown and Accused Opt for a Plea Deal?
A plea deal is viewed as a mutually beneficial option, providing both the Crown and the accused with a definite outcome. Plea deals effectively remove the element of uncertainty from the process.
An accused might be especially inclined to accept a plea deal if there is a preponderance of evidence against them, and they are unlikely to succeed at trial. Or the accused might not have the resources or the willingness to pursue a potentially costly and stressful trial.
Conversely, when the Crown pushes for a plea deal, it is because it is required to prove the accused’s guilt beyond a reasonable doubt. This is a heavy onus, and if the Crown is not confident in the merits of its case, a plea deal can be an attractive alternative.
Concerns About the Use of Plea Deals
Plea deals are a controversial element of the criminal justice system. Indeed, they raise important questions that are worth debating. Some of the questions that concern plea bargains include:
- Are plea deals fair to the accused? Plea bargaining incentivizes the accused to plead guilty, whether or not they committed the crime. Plea bargains might pressure an accused to strike a deal rather than go to trial when doing so is not actually in their best interest.
- Do plea deals undermine the justice system? The court of law should be dedicated to truth-seeking. Plea bargains challenge this ideal insofar as they prevent the court from thoroughly assessing a case via documents, witness testimony, forensic evidence, expert analysis, etc.
Plea Deals as a Tool to Increase Efficiency in the Canadian Criminal Justice System
While plea deals raise serious concerns about fairness to the accused and the administration of justice in general, they are often used to promote efficiency rather than the pursuit of truth. The court system in Canada is overburdened, plagued by long delays and severe backlogs. These institutional problems negatively impact everyone who is involved in the system, especially the parties that hope to see justice in a timely fashion.
Plea deals can alleviate the burden on the courts. They allow cases to be resolved more quickly, freeing up court time for higher-priority cases. This is a significant benefit and is a primary reason why plea deals are so popular in practice.
Understanding plea deals and how they work, and grappling with their pros and cons, is essential to understanding the Canadian criminal justice system in 2025. While plea deals deliver expedient results, they continue to provoke difficult questions within the criminal law community and the public at large.
Contact Barrison & Manitius for Skilled Criminal Defence Services in Oshawa
At Barrison & Manitius, our experienced criminal defence lawyers are skilled in every aspect of the legal process, including plea deals. We understand the nuances of plea bargaining and are committed to achieving the best possible outcome for our clients through negotiation. We proudly serve clients in Oshawa, Durham Region, and throughout the Central East Region of Ontario.
Whether you’re facing charges related to assault, weapons offences, or drug offences, our team is here to help. Contact us online or call 905-404-1947 (toll-free at 1-888-680-1947) to schedule a consultation today.