Bargaining for Justice: The Road Towards Prosecutorial Accountability in the Plea Bargaining Process

Abstract

This article draws on doctrinal as well as comparative legal methods to argue that the current devices designed to constrain and guide prosecutorial discretion in Canada—case law, provincial Rules of Professional Conduct (“Rules”), and Crown Policy Manuals (“Manuals”)—risk prioritizing expedience over procedural fairness and ought to be reformed. We look to the German model as an alternative avenue for reform of prosecutorial discretion while also raising limitations associated with this model. This article proceeds in three parts. Part I contextualizes prosecutorial discretion by outlining the nature of this discretion and its place in the criminal justice system broadly and the plea bargaining process more specifically. Part II sets out the inadequacies of the current devices and notes their inability to constrain and guide prosecutorial discretion during the plea bargaining process. Part III explores alternative avenues for reform of prosecutorial discretion in the plea bargaining process by engaging in a comparative analysis inspired by the German model of prosecutorial oversight and assessing the strengths and limitations of this model. This model embraces a number of policies and procedures aimed at regulating the plea bargaining process, including note-taking during plea discussions and motivating plea recommendations. The German model is most notably lauded for its transparency, which can in turn enable greater prosecutorial and procedural accountability. While it might be argued that additional regulations imposed on the Canadian process risk grinding the gears of criminal justice to a halt, we argue that our proposed avenues for reform do not impose time-consuming burdens on prosecutors, particularly when these changes are combined with policies and practices that favour decriminalization. As will be seen, prosecutors in Canada have more discretionary powers to charge individuals with offences, and in this respect, implementing the proposed new measures and combining them with additional diversion and decriminalization strategies can realistically lead to a more efficient and equitable process.

Keywords: plea-bargaining; prosecutors; comparative; accountability