Law professor calls for transparency in Manitoba plea bargains

While a Winnipeg man is set to be sentenced on weapons offences today, a law professor says the justice system needs more transparency in the controversial process known as plea bargaining.

Trevor Zayac was sentenced Thursday on weapons offences

Debra Parkes, a law professor at the University of Manitoba, says plea bargaining is a very common practice across the country, but it's also very controversial. (CBC)

While a Winnipeg man was sentenced on weapons offences today, a law professor says the justice system needs more transparency in the controversial process known as plea bargaining.

Trevor Zayac pleaded guilty Jan. 7 to unsafe storage, possession of a prohibited weapon and failing to report a lost or stolen firearm. 

But a woman living in witness protection says she feels betrayed by Crown prosecutors after a charge for what she calls a vicious assault by her ex-boyfriend, Zayac, was stayed after a plea bargain.

In an interview with CBC News, University of Manitoba law professor Debra Parkes said plea bargaining is very common across the country — but also very controversial.

"In a true plea bargain or quid pro quo, the accused is giving up something — their right to go to trial and maintain their innocence and the crown is giving up something," such as dropping one of the charges or agreeing to a lesser sentence, Parkes said.

This woman, whose identity and location CBC News is protecting, said she helped convict her ex-boyfriend, Trevor Zayac, on weapons charges after telling officers investigating her assault complaint about a large cache of guns he kept in his home in Winnipeg. (CBC)
"What we don't always see though is that … there should be more transparency in these processes," she said.

"Some of the very practical reasons is that our system is awash in cases, and if every case were to go to trial there's an assumption that, you know, it would simply be impossible to actually do that at a practical level," Parkes said.

"But the more principled reason is meant to be that, you know, there's often reasons why a particular charge might be difficult to make out. There might be problems with a witness, their availability, what statements they've made, some other problems with evidence. There can be passage of time in some cases. There can be all kinds of reasons why it might be more difficult to make out a particular case - a reluctant witness for example," Parkes explained.

"We need more transparency, I think, in that process, and having the reasons and basis for plea bargains more commonly put on the record for that scrutiny to be able to be made," said Parkes.

"We don't know very well how the system is doing because, by its nature, it is a closed-door process."

Manitoba has Victims' Bill of Rights

Parkes said Manitoba does better than some other provinces when it comes to protecting victims because of the province's Victims' Bill of Rights, adopted in 2001.

"Manitoba actually was a leader and has been a leader in terms of our Victims' Bill of Rights and the role that victims are entitled to play," Parkes said.

Victor Bellay, a supervising Crown attorney with the domestic violence unit in Winnipeg, says he agrees with the need for transparency in plea bargaining. (CBC)
The bill of rights requires the Crown to keep victims informed of things such as a decision to lay a charge or stay a charge; the Crown's position on sentencing; and if the accused is in custody, any application for release.

Victor Bellay, a supervising Crown attorney with the domestic violence unit in Winnipeg, said in an interview he agrees with the need for transparency in plea bargaining.

"Plea bargaining isn't done in public, but the process still needs to be transparent," Bellay said.

He would not comment on the Zayac case specifically, but he said Crown attorneys have to use their discretion in determining which charges should proceed.

"We proceed in cases where we believe there is a likelihood of conviction and where we believe the prosecution's in the public interest," said Bellay.

"If, as the case proceeds, a Crown attorney decides, based on all the evidence … there is no reasonable likelihood of conviction, then the Crown is bound not to seek a conviction in that particular occasion," he added.

Victims or their families may not agree

Bellay acknowledged that there will be times when victims or their families don't agree with the decision.

"Victims and family members do express their disappointment if, at times, Crowns use their discretion in a way [victims] don't identify as they would want to see the case be pursued," Bellay said.

"Unfortunately, we're bound by professional standards and obligations."

Bellay added, "As the Crown, we are not the lawyer for the victim in the way that the defence lawyer would be the lawyer for the defendant. Our obligation is to represent the administration of justice.

"We can express sympathy with the family and try to explain our position. Naturally, there will be disappointments. We try to be sensitive to those disappointments and try to explain the position."

The complainant in the Zayac case told CBC News she was upset that she was informed of the plea bargain outcome only on the day of the court hearing.

Parkes said it's important for the Crown to inform crime victims in a timely way so that they can make their views known regarding a plea bargain.

"If the information is conveyed at such a last-minute stage of the proceedings, that it isn't possible for their views to be known, then those rights have actually not been meaningfully enforced," Parkes said.

Bellay said he couldn't speak to the specific case but said sometimes that can happen, particularly if a witness is difficult to contact.

"I would say every case depends on its particular circumstances. We would obviously want to try [to] make communication in a timely way but as best we can in the circumstances that present to us," Bellay said.

Parkes said in other jurisdictions, there have been efforts to do away with plea bargaining altogether.

"There have been some jurisdictions that have either abolished or severely limited the practice of plea bargaining, particularly in the U.S. So the state of Alaska, for example, has done that," said Parkes.

She added, "Research does suggest that the sort of dire warnings about what would happen if you got rid of plea bargaining or dialled it back a lot haven't actually been proven in the Alaska case."