Remand for Plea: Bail Decisions and Plea Bargaining as Commensurate Decisions

Canada requires that a defendant kept in pre-trial detention pose a risk that they will either (1) fail to appear for future court proceedings or (2) further threaten public safety. However, Canadian courts have seemingly failed to adequately adhere to this objective risk assessment model when determining whether a defendant will be placed in pre-trial detention, instead relying on individualized, moral assessments of the defendant. The more negative the assessment of a defendant’s character and background, the more likely it is that the defendant will be denied bail. These subjective assessments (based on documents created by police officers) are consistently more negative for Black defendants than white defendants, which has led to racially disproportionate rates of pre-trial detention. Additionally, this study indicates that prosecutors often use pre-trial detention as a strategy to incentivize defendants to plead guilty in exchange for lesser charges rather than rejecting all charges and potentially spending longer in custody. This not only results in racial disproportionality in the decision to plead guilty, but it also creates “structural coercion” in the plea process. The use of subjective assessments and structural coercion, combined with the confidentiality of police documents, creates a nearly impermeable shield around the practices surrounding pre-trial detention decisions and plea bargaining in Canada.

“[T]he informality of certain bail practices combines with the confidentiality of police documents to render invisible the way in which personal identity influences the outcomes of both bail decisions and plea bargaining. . . . [T]he lack of legal requirements for judges to enquire into a ‘defendant’s decision to plea guilty has effectively created an environment in which it is possible for [the court] and defen[s]e counsel to enter into plea bargains behind the inscrutable veil of secrecy.'” p. 205