Seeking Justice by Plea: The Prosecutor\u27s Ethical Obligations During Plea Bargaining

Canadian Crown prosecutors enjoy tremendous discretionary power. They can leverage this power during plea bargaining by structuring the terms of plea deals and by engaging in aggressive negotiation tactics, thereby exerting a disproportionate influence on plea bargaining processes and outcomes. This article considers how Crowns should wield their power to shape plea bargains in light of their ethical obligation to seek justice. In particular, it considers how Crowns should identify the just case outcomes they will pursue through plea bargaining and assesses which bargaining strategies they should employ or eschew in pursuit of those outcomes. In the process, the article addresses a few especially thorny questions, including: whether Crowns should ever strategically overcharge defendants to facilitate plea negotiations; how Crowns ought to balance the accuracy of criminal charges against the fairness of criminal sentences when the two are in tension; and how Crowns can strike an appropriate balance between plea bargaining fairness and efficient case management. The article offers several concrete policy recommendations aimed at helping Crowns satisfy their ethical obligation to seek justice in the context of plea bargaining