Trust in a nation’s justice system relies on a promise of fair and equal treatment under the law. In Canada, ninety percent of criminal cases are settled through a process of unsigned plea bargains which lack judicial accountability. Corrective legislation like my proposed “Bill of Integrity” first drafted in 1999 to address this subject was looked at by members of parliament and forwarded to the Attorney General of Canada and the Minister of Justice in 2002. Receiving a written response, I was informed that there were no specific provisions regarding plea bargains that had to be followed, but despite this admission, justice system officials stated there was no need for the proposed legislation.
The reasons given on why this bill would not enhance the integrity of the legal profession and the courts were…(1)“The vast majority of dealings between Crown attorneys and defence counsel are already characterized by the utmost of professional honesty, courtesy, and integrity in criminal court proceedings.” —(2)“While adversaries, they are nonetheless bound by their professional codes of conduct and procedural rules.” —(3)“While counsel on both sides are occasionally forced to abandon a previously agreed to sentence submission, they do so for valid and ethical reasons, such as client instructions or the emergence of new facts.”
(Modefied from the original but equal in its purpose, I have written an updated draft with one change, which I will explain when I address the government’s reasons for not supporting the original proposal in 2002.)
“The Bill of Integrity”
(Plea-bargain)
(1) —If a guilty plea is brought to court it must be accompanied with a signed document that outlines in specific terms the charge and the length of sentence agreed to by all parties.
(2) —Agreed upon evidence must be submitted in writing at the time of sentencing, including any preliminary hearing submissions where evidence has been proven and agreed to be so by all parties. If necessary and agreed upon, oral submissions must be added to the public record if signed off on by all parties.
(3) —Signatures of the rightfully involved parties are deemed to be the following:
[a] –The Defence Attorney
[b] –The Defendant (if choosing to proceed without counsel must also sign off in space provided for defense attorney; stating: “Acting as own counsel.”)
[c] –The Prosecuting Attorney
[d] –The Sentencing Judge
The purpose of this bill is to ensure judicial integrity in plea bargaining across Canada The legislation would strengthen the principles of “Due Process” and ensure the legal rights of both victims and accused citizens are protected. [ A plea bargain with signed accountability would enhance the integrity of the legal profession and show respect for fair and equal justice ]
Note: The change made from the original proposal in 1999 is the removal of the, “Victim” as a party to the plea-bargain. After legal consultation and thought, I have concluded that this change is not only warranted, but necessary. At trial, a victim or family member has the ability to make a presentation, (Victim impact statement) a right that is absolutely necessary and proper. Adding the victim’s required signature to the plea agreement is therefore not needed alongside a victim impact statement, and by excluding it from the plea the court cannot be held hostage to personal animosity. A judge determines guilt or innocence based on evidence given and challenged. In the case of a plea bargain, a signed agreement qualifies this process, which includes the length of sentence offered to the defendant who’s signature confirms acceptance. Once presented to the court, the judge can either sign off on the plea or refuse it; if the latter is chosen, the judge can seek a new agreement and consider bail if required while a trial date is being set.
Let’s take a closer look at the three reasons given for dismissing the need for the “Bill of Integrity in 2002, and consider the highlighted responses which I have added:
(1) “The vast majority of dealings between Crown attornerys and defence counsel are already characterized by the upmost of professional honesty, courtesy, and integrity in criminal court proceedings;” and, (2)“While adversaries, they are nonetheless bound by their professional codes of conduct and procedual rules.” …In my book, “Poor Man’s Justice” it is made clear why these self-serving narratives have no merit…If the deception used by the justice system in my case is ignored, the question still exists, “Could this happen when there is no accountability built into the process?” The answer is clearly a profound, …Yes!
The justice system’s third explanation on why there is no need for legislation which would enhance integrity in the plea bargaining process is even more astonishing!
(3) “…While counsel on both sides are occasionally forced to abandon a previously agreed to sentence submission, they do so for valid and ethical reasons, such as client instructions or the emergence of new facts.”
This far reaching explanation has absolutely no bearing on why a bill requiring the signatures of all parties to a plea-bargain should not exist! If a plea is to be abandoned, there is no plea! Remember, it is the defendant who must agree to the offer, and if for any reason it is taken off the table, he/she must be told why. This includes any new facts as suggested. If new evidence is presented to the bench before the agreed upon charge and sentencing is completed; the judge can withhold his/her signature and order a case to trial…or ask for a new signed plea which can be submitted if new evidence is undisputed.
Manufactured senerios, like “new evidence” being passed off as a reason to avoid accountability muddy’s the waters. In a trial setting new evidence presented by the prosecution can be questioned by the defence, but this third excuse used by the justice system to avoid accountability, suggests sentencing could proceed on evidence that has not faced cross-examination. Such a blantant disregard for due process leaves one to wonder if it is a signed plea-bargain which the justice system fears, and it leads to another question…why?. Manipulating someone into a plea, knowing it does not exist, as happened in my case, is about as far away from being fair and just as you can get…but to do so while maintaining an ability to vilify, degrade, and dehumanize someone with manufactured and unquestioned innuendo is a disgraceful judicial act which I believe is criminal in itself. In my case, government paid lawyers sat at both tables…prosecution and defence. On both sides, innuendo and falsehoods went unquestioned, such as my panic attack that happened days before the assault, which was falsely described by a justice system social worker as occuring ten years earlier. Disregarded in the same document was the psychatrist’s conclusion which stated that my severe depression and inability to fully understand my actions that night should be a considered factor in sentencing, which also went unmentioned by the judge who’s only reference to the doctor’s findings was the amount of alcohol consumed that night.
To be clear, I never denied the assault and was found huddled against the wall of our community’s police station in a catatonic state a half-hour after the event. In an interview with this officer who found me, conducted after my release, I was told the man was hospitalized for two days while recovering from a knife wound that needed stiches, and thankfully not more, which I agreed with. For that reason I have always stated that this story is not about guilt or innocence, but the manipulation of legal and ethical principles which led to a denial of due process. This dishonestly offered plea bargain and deceptive lie used in the waiver of my suspension hearing three years later when I was questioning the abuse of judicial ethics must never happen again. Combined, this abuse might well be the reason behind Ottawa’s present day bail reform which is under scrutiny as a means to get around the issues in my case which the justice system has been aware of for over two decades. Whether it be the case or not; a signed plea bargain identifying the charge and length of sentence would enhance the court’s integrity. Similarly, signed parole hearing waivers would do likewise for the N.P.B. and Corrections Canada. Having a parolee’s explanation on a signed waiver would have prevented a parole supervisor from using a lie to get my signature on a waiver, which sadly, led to a vindictive revocation for a minor travel violation that saw me reimprisoned for over a year after I took my three children out for an afternoon of bowling in a neighbouring community!
David Mitchell: A father, grandfather and proud citizen of Canada.