Given the subject of our last blog entry, it makes sense to look at the ability of the Defence, as opposed to the Crown, to repudiate a plea agreement.
As mentioned yesterday, the Martin Committee views plea agreements as undertakings, which are not to be reneged upon absent exceptional circumstances. Most professional conduct codes say nothing on the issue, but in Alberta the Code expressly states that plea agreements are not undertakings and that either party can withdraw provided that ample notice is given. Specifically, the Alberta Code states: "An agreement between the prosecution and defence regarding the plea to be entered is not considered a usual lawyers' undertaking due to the policy considerations involved. Either party may withdraw from the agreement prior to performance, although the withdrawing party should afford the other party ample notice. However, once the agreed-upon plea has been entered by the defence, it is generally improper for the prosecution to attempt to repudiate the agreement of the parties."
We've already seen that the Crown is severely restricted in its ability to reneg on a plea agreement. The Martin Committee Report and cases such M.N.R. explain why this is so. The Alberta Code, while slightly less clear on the matter, seems to lean in the same direction. But unlike the Martin Report, the Alberta Code plainly leaves wide latitude for the defendant to repudiate a plea agreement. This approach is justified because the defendant has a constitutional right to decide how to plead in a case. Forcing the Defendant to follow through with an expressed intention to plead guilty would almost certainly be held to violate this right. The decision is simply too important to warrant pinning a Defendant down in this way.
But this is not to say that Defence counsel can be cavalier about plea agreements. While the client has the right to change his or her mind, Defence counsel should otherwise treat the agreement as binding. A failure to do so may be unethical, and in any event risks exposing the client to harm and damaging the lawyer's reputation in the legal community.
As an aside, where the client does change his/her mind and repudiate a plea agreement, the common course is for defence counsel to withdraw from the case. Doing so is the best course of action where the client's change of heart amounts to rejecting the lawyer's advice with respect to the plea. But apart from a breakdown in the relationship or circumstances that might suggest a conflict of interest, withdrawal is not always necessary. GFN is aware of an unreported case where Crown counsel sought to have the defence lawyer removed in the wake of a reneged upon plea agreement because, it was suggested, the defence to be advanced at trial was inconsistent with the facts that the client must have conveyed to defence counsel in agreeing to the plea agreement. But this ingenius argument was rejected, as it should have been. In the absence of information as to what has passed between counsel and client, it will usually be impossible to say whether the lawyer is fixed with knowledge that makes it unethical to pursue a particular defence. It may well be, for instance, that the client admitted to the incriminating facts in agreeing to the plea resolution but in repudiating the agreement told counsel that he had falsely done so because he believed that a guilty plea was in his best interests. In such a case there may be nothing wrong with defence counsel conducting the case based on current information from the client and not the previous, now recanted, admission.
It's thus clear that the Crown and defence are not treated the same way when it comes to the repudiation of plea agreements. The Crown is largely restricted in its ability to reneg, while the defendant always has the option of pulling out, at least up to the point where s/he enters the plea in court. While defence counsel need not withdraw in every case where his or her client has repudiated a plea agreement, the advisability of doing so should be considered.
