Amidst a brilliant pool of political science, business, and criminology graduates, I have consistently felt like a “fish out of water” in law school – until my first crim assignment. When I was asked to observe the courthouse for six hours (a time limit I exceeded due to pure fascination), record what I saw, and compile a creative report that connected my observations to my readings, I could not have been happier. As an aspiring criminal defence lawyer, anthropologist, and academic neophyte, this assignment was a dream come true. I treated that crim assignment as an ethnographic account of my time spent at the Ottawa courthouse; specifically, my time spent in guilty plea court. In writing that assignment, I recognized my own positionality as an anthropologist who comes from a school of Foucaldian thought; that is, I come from an understanding that multiple societal institutions (i.e. criminal justice, education, health, etc.) function symbiotically to create and reproduce inequalities. This theoretical framework ultimately shaped how I connected and synthesized my class readings to my limited experience in the courthouse in early October 2017.

Invisible Centres of Attention in Guilty Plea Court

Stranger Danger - Is it Weird that I be Here?

Around 9:00am on an early October Tuesday, I, alongside a few friends, excitedly walked into a busy guilty plea court and sat in the back row behind an African-Canadian man. The man turned around and gave me a look of confusion and irritation, probably wondering why we were there. I cannot blame him. If it were me in his position, I certainly would not appreciate five young strangers watching me plead guilty to a crime I may or may not have committed, but was nonetheless forced to plead guilty to in an effort to expedite a lengthy criminal trial process and to move on with my life (Public Prosecution Handbook). As if being in that courtroom as an accused is not scary enough, the idea that literally anyone could enter and watch such an intensely personal dilemma – that has affected and will continue to shape my life in unimaginable ways – is an aspect of the criminal justice system that I find truly disturbing. Upon later reflection, my uncomfortableness of sitting in the courtroom as an observer must mirror, on a much lesser scale, how Indigenous people must feel when they are sitting on trial for a criminal offence and a jury of strangers are left to decide their future (Turpel). Nonetheless, I sat there; confused, torn, and genuinely sad for a myriad of reasons and watched a number of individuals plead guilty to crimes of theft and assault.

Invisible Bodies, Visible Nerves - A Ghost in the Courtroom

The first gentleman on the docket was a tall, white man who appeared to be in his mid-50’s. He was pleading guilty to theft. On three separate occasions, he had stolen alcohol from two different LCBO locations in the Ottawa area. He had a criminal record. His defence counsel, a similarly aged white man, was a strong advocate, telling the court that his client was an addict and had been making steps to rehabilitate himself by undergoing treatment. From what I could understand, the defence and Crown had negotiated a joint sentence that this man plead guilty and get sentenced to probation for twelve months. The judge, an older African-Canadian man, agreed to the sentence suggested by both lawyers – which is exactly what we were taught would happen.

Something that we were not taught in class and was completely lost in our readings, was how the accused was basically invisible from his guilty plea. He was the sole reason his lawyer, the Crown lawyer, and the judge were there; yet, he remained relatively absent throughout his own hearing. It was as if he was a ghost; the officers of the court could feel his presence, but they refused to see him. The accused was present in the courtroom when his hearing began, but received no instruction from his lawyer (or anyone) about whether he should be standing in the middle of the aisle during his hearing or whether he should remain seated; he was the centre of attention, the main event of the hearing, but he was invisible. I watched as he confoundedly stood up at his seat at the first mention of his name, then quickly sat down again, then stood up a few minutes later and made the decision to stand in the middle of the aisle for the remainder of his hearing. This man received no instruction, no acknowledgement, and no eye contact from anyone involved in his hearing. Once the judge had sentenced him, his lawyer finally turned to him and said, “I’ll meet you outside to explain what’s going on, but you need to stay here to sign the probation papers”, and then walked out of the courtroom. Without an opportunity to ask questions or speak, the offender signed the probation papers and presumably went to meet his lawyer so that he could understand what just went on in that courtroom and what exactly he signed.

Initially, I had thought that this interaction – or lack thereof – was a courthouse anomaly. I did not think that the offenders would be rendered completely mute and to a certain degree, ignored, by all of the officers of the court. But, I sat in that courtroom for two hours that morning and watched as more people pled guilty to their crimes and watched those same people exit the courtroom with looks of fear and confusion in their eyes.

The Cheese Stands Alone - Judicial Interim Release and Pretrial Custody

The next person up to plead guilty for theft was a young, African-Canadian man who appeared to be in his late-20’s - early-30’s. This man was arrested in Loblaws for stealing sixteen blocks of cheese. He was brought in from remand custody from where he spent four days. He had a previous criminal record – a fact not recorded by the judge. Because the judge did not write down that the accused had a previous criminal record, the accused was granted a credit of six days and was subsequently released. As in R.v. Johnson, the offender in this case was also awarded the supposed “exception to the 1:1 rule” and was applied the 1.5:1 ratio (days served in remand custody:days of sentence) which is now understood to be common practice in sentencing courts. Like the previous offender, this man was also rendered invisible in his own hearing.

Remand custody is another aspect of the Canadian criminal justice system that I find difficult to stomach. In a system that purports to claim a presumption of innocence and adopt the adage “innocent until proven guilty”, the rationale behind remand custody needs some serious re-working. Many people who spend time in pretrial custody are unable to “make bail” because they are unable to afford it or they do not have a reliable surety in their lives that will ensure their subsequent court appearances (Legal Aid Ontario). Consequently, these individuals are forced to spend dead time in remand custody until they either plead guilty (which is unfortunately the best scenario for them because their “remorse” may be a factor that the judge considers when sentencing and it gets them out of an overcrowded prison with neither programs, nor resources) or they are able to find a surety to get them out on judicial interim release. As Green J. maintained in R.v. Johnson, “Pre-trial custody is more onerous than post-sentencing custody”.  The fact that almost everyone being held in pretrial detention is presumed to be legally innocent and cannot get judicial interim release because of their socio-economic position is an extremely harsh reality that I, as an aspiring defence lawyer, will need to find a way to stomach. By holding people in pretrial detention because of the unfortunate cards they were dealt with in their lives, the criminal justice system is effectively punishing individuals for being poor, vulnerable, and alone. Simultaneously, the criminal justice system is rewarding individuals who are able to produce a surety; therefore, effectively privatizing the criminal “justice” system. For those individuals who are trapped in remand facilities, the presumption of innocence is lost, freedoms are revoked, and the only practical and efficient way for them to escape is by gaining a scarring criminal record. The cheese indeed, stands alone.

No Money, Mo’ Problems - Sentencing and the Social Determinants of Crime

The final guilty plea I will discuss was, in my opinion, the most fascinating to observe as it was a true reflection of an adversarial system. The accused was a middle-aged white man with a history of violent behaviour who was pleading guilty to assault. He had been brought in from remand custody after breaking the conditions of his bail. He was initially released around 2:30am on September 25, 2017, with the condition that he not contact the victim – his girlfriend (who was present in the courtroom, alongside his mom) with whom he had a son – or be within certain parameters of her. Immediately after his initial release, he got drunk and went to his girlfriend’s house because he had no money on him and prior to his arrest, he was living with his girlfriend. The police were notified and the accused was subsequently arrested again. He had spent twelve days in remand custody at the time of his hearing and was therefore expected to receive a credit of eighteen days. His lawyer, an older white man, was a strong advocate and was asking the judge for a sentence of fifty-seven days that would be served intermittently, so that his client could keep his job, and one year of probation. The Crown opposed this suggested sentence. Instead, she maintained that the accused was “making excuses” about his lack of money and argued that because he blatantly disobeyed his bail conditions immediately after he was initially released, an intermittent sentence would be “very concerning”. The accused’s lawyer respectfully interjected and countered that his client was not “making excuses”; rather, it was a fact that his client was released in the middle of the night without his wallet and had nowhere to go but his girlfriend’s residence. Moreover, his lawyer kept reiterating that not only was the accused gainfully employed, but he also had the support of his girlfriend – the victim, lest we forget – and he had served an intermittent sentence in the past, so he was unsure as to why the Crown was so opposed to his suggested sentence. After hearing both the defence and Crown speak, the judge sentenced the offender to fifty-seven days in jail which were to be served intermittently, eighteen months probation, and enrollment in a rehabilitation program called “New Directions”. In his sentencing remarks, the judge stressed that the fact that offender was gainfully employed was a key factor to his intermittent sentence.

In R.v. Reid, Morgan J. maintained that “While this court is not in a position to remedy the societal issues, it can and should take the societal context into account in fashioning an appropriate sentence for an individual offender.” Throughout the criminal trial process and especially during sentencing, it is extremely important to consider the social context behind both the offender and the offence they may have committed. In the judge’s sentence of the accused in the case described above, he was understanding to the fact that the man was released in the middle of the night, without his wallet, and had nowhere else to go but his girlfriend’s house, despite his specific bail condition to not go there. While I wholeheartedly agree that social context should play a significant role during the criminal trial process, I have to disagree with Morgan J.’s statement that the court “is not in a position to remedy the societal issues”. The courts and the criminal justice system are a locus of extreme power. They have the impactful ability to significantly change the fated outcomes of every single accused person’s lives and their loved one’s lives, no less. They have the power to grant opportunities for individual rehabilitation and reform. They have the power to stop the cycle of structural violence. Recognizing the need for societal context in sentencing is already too late. Recognition of the significance of the social determinants of crime (i.e. poverty, race, gender, sexual orientation, economic status) need to be addressed before individuals ever need the opportunity to enter the courtroom; that is, discussions on the social determinants of crime need to be addressed preventatively and not retroactively. I prefaced my paper that my limited understanding and experience in the criminal justice system is informed by historian Michel Foucault’s discourse on power – that multiple institutions are the loci of power and interact symbiotically to create and reproduce inequalities. As the criminal justice system is just a singular locus of power, the grave responsibility to “remedy societal issues” is not solely theirs; rather, the responsibility is equally dispersed amongst the institutions of education, health, government, market economies, and more. However, as a function of power, the criminal justice system does have the ability – and responsibility – to create good change within society, which would signal other loci of power to recognize, react, and reproduce that same change and negate the reproduction of inequality.

Arguably, the criminal justice system has been making some significant strides in recognizing it’s own power to affect social change by addressing the social determinants of crime in terms of how it handles Aboriginal offenders (R.v. Gladue; R.v. Ipeelee; Turpel). In light of the chronic problem of over-incarceration and overrepresentation of Aboriginal offenders in jail, the Criminal Code introduced s. 718.2(e):

“A court that imposes a sentence shall also take into consideration the following principles (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.”

The courts encountered trouble with how to interpret and apply this new stipulation in R.v. Gladue and R.v. Ipeelee; however, the Gladue rule accomplished two things: (1) It put the proviso in a larger context by acknowledging the remedial purpose of the provision and interpreting the proviso beyond simple codification; and (2) It introduced restorative goals to the criminal justice system. By paying “attention to the circumstances of aboriginal offenders”, the courts were forced to recognize the harsh reality that prisons became the new residential schools for many Aboriginal people. The introduction, interpretation, and application of s.718.2(e) underscored the legislature and the criminal justice system’s recognition that something needed to be done to effectively “remedy societal issues”. Their collective attempt to effect good change is an example of how institutions of power function symbiotically to create a common goal; and, if they are were able to recognize the value of discussing the social determinants of crime in the context of Aboriginal offenders, it is not out of their scopes of power to “remedy societal issues” on a much broader scale. Aboriginal offenders were virtually invisible from the criminal justice system until their presence became so overbearing that changes were needed. Non-Aboriginal offenders remain invisible bodies within the criminal justice system and we should not have to wait until their custodial presence becomes just as overbearing so as to exacerbate the necessity of change.

Access to “Justice” - the Problems with Plea Bargaining

In my humble opinion, “access to justice” does not simply mean one’s ability to access legal aid; rather, “access to justice” means the ability to access a comprehensive understanding of what goes on inside and outside of the courtroom. Further, “access to justice” means the ability to access fair, understanding, culturally competent, and patient legal aid. Based on my limited observations between clients and lawyers inside and outside of the courtroom, it appeared as though the clients did not have a comprehensive understanding of what exactly was going on in their case. And maybe they shouldn’t; but, maybe they should. It is my strong belief that lawyers – especially defence lawyers ––have an incredible responsibility to their client, as their clients’ lives are implicitly placed in their hands. This fiduciary responsibility that lawyers have to their clients is something that should not be taken lightly; yet, I could not help but notice that the interactions between a few lawyers and clients were not seemingly respectful and in other cases, non-existent. Clients appeared to be invisible.

The criminal justice system is not reassuring. The interactions between the defence and Crown lawyers were collegial, but the interactions between the defence lawyers and their clients were much less so. The judge accepted all of the joint sentences and the offenders were simply ornamental in their own hearings. In fact, I would go so far to say that they almost did not matter. They were never spoken to, they were barely glanced at, and they said nothing throughout their respective hearings. They were ghosts. It is not surprising that public perceptions of lawyers and the Canadian criminal justice system are poor. If I were in the position of any of the accused individuals that I observed, I would also harbour a poor perception of lawyers and the criminal justice system. As a law student, it was encouraging to see collegiality within the profession. As an accused or even in my position as an observer of the court, it was simultaneously discouraging to see that level of collegiality within the profession because it could so easily be misconstrued that the defence lawyer, Crown, and judge were all “working together”, since plea bargaining happens between lawyers and it is common practice for the judge to accept their joint sentences.

Another striking element about the Canadian criminal justice system is that not only is the accused invisible in their own guilty plea hearing, but they are also absent from discussions between their hired lawyer and opposing counsel; thus, suggesting that their freedom is a commodity and plea bargaining is nothing but a tool for lawyers. Canada’s criminal justice system is said to be a “Due Process Model” – that is, it is meant to look like an obstacle course. “Each of its successive stages is designed to present formidable impediments to carrying the accused any further along in the process” (Handout in class). The individuals I watched plead guilty to their offences did not experience this model. Rather, they experienced the “Crime Control Model” – which resembles an assembly line and “places heavy reliance on the ability of investigative and prosecutorial officers, acting in an informal setting in which their distinctive skills are given full sway, to elicit and reconstruct a tolerably accurate account of what actually took place in an alleged criminal event” (Handout in class). In plea bargaining, the Crown holds the power (Public Prosecution Handbook). The Crown has the incentive to push for plea bargaining because it lightens their workload and gives them the opportunity to allocate more of their time to what they deem as “more serious cases”. On the other hand, plea bargaining can be beneficial to the defence counsel because it supposedly gives them the opportunity to act in the best interest of their client in terms of evidence. While I realize that our criminal justice system is not equipped to run a system that is truly reflective of the Due Process model because of chronic underfunding, it is difficult for me to stomach that individuals pleading guilty may only be doing so not because they want to plead guilty, but because they cannot afford any further legal fees or they just want this whole nightmare to end. Moreover, if they are pleading guilty to get a lesser sentence by showing the judge remorse or to simply end their nightmare, I cannot help but wonder if they fully understood the gravity of pleading guilty to a criminal offence and how that guilty plea would affect the rest of their lives. Finally, in terms of accessing “justice”, I had a difficult time understanding what was being said by everyone in the courtroom and I am a first year law student with a graduate degree. If I had difficulty understanding and following what was going on, then how much more difficult was it for the offenders’ to understand the events within their own guilty plea hearings?

I think my overarching fear of plea bargaining rests on choice. I cannot help but wonder if these individuals made the conscious and informed decision to plead guilty out of their own volition or if they were persuaded to do so by their lawyers in an effort to not go to trial. This is, perhaps, one of the most disturbing and truly heartbreaking realities that I am having difficulty coming to terms with about our criminal justice system. As someone who had never stepped foot in a courtroom before this assignment, it was genuinely disturbing to watch these individuals literally get pushed through the system in an effort to maintain efficacy. The prevalence of plea bargaining seems inconsistent with Charter values and completely displaces the judicial system and circumvents the adjudicative process. Does efficiency take precedence over fairness? Is the criminal justice system really about justice, or is that just a misnomer? Should the courtroom not render the accused invisible?

Final Thoughts

The Canadian criminal justice system is a body of incredible power. Public mistrust of that body of power stems from peoples’ lived experiences and interactions with the system. Plea bargaining is so controversial because it renders the accused invisible from negotiations that happen behind closed doors. At the end of the day, plea bargaining is a tool for lawyers to maximize efficiency and limit “access to justice” to the key players within the justice system. Plea bargaining appears to fail to consider the purpose of the criminal justice system – to administer justice to the invisible public. Moreover, this tool perpetuates, reproduces, and recreates inequalities amongst already invisible members of society – marginalized populations.

The Canadian criminal justice system has failed, is failing, and will continue to fail marginalized members of society if we continue to treat the criminal justice system as an acute societal sickness. Law does not operate in a silo. Law extends far beyond the courtroom setting and is heavily intertwined with other societal institutions of power. If we want to fix this broken social system, then we need to first fix our broken society. As Chief Justice Beverley McLachlin stated in our very first reading about the Legal Profession in the 21st Century, we must “accept the idea of change” and recognize that “change may be necessary”. One important qualifier to that statement is that as the legal profession changes, the legal system also changes. The dynamism of the legal and criminal justice system is a reflection of the dynamism of socio-cultural change. As a locus of power, the criminal justice system needs to respond, adapt, and adjust to dynamic social needs. These needs are not invisible. These uncomfortable realities are not invisible. These bodies are not invisible. It is time that the criminal justice system recognizes its own power and make justice truly accessible in order to help cure our social suffering.