Les discussions entre avocats doivent demeurer confidentielles

R. v. Tkachuk, 2001 ABCA 243 (CanLII)

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[33] As to the obligations of counsel wishing to resolve a case by way of guilty plea and a joint submission on sentence, this Court has said that:

i) The facts of the case ought to be fully disclosed so that the sentencing judge is aware of all the circumstances, including the aggravating and mitigating factors.

ii) Where the proposed sentence is not obviously within the accepted range of sentence for that offence, counsel, and particularly Crown counsel, should explain to the court the reasons for departing from a sentence within that range. In R. v. G.W.C., supra, Berger, J.A., illustrated this point by noting that the joint submission may be the result of an evidentiary gap in the Crown’s case, or the absence of an essential witness.

[34] The requirement to inform the sentencing judge of all of the circumstances guiding the joint submission was not intended to be taken as a direction that counsel must reveal their negotiating positions or the substance of their discussions leading to the agreement. These are private negotiations which need not, and normally should not, be disclosed to the court. R. v. Roberts, 2001 ABQB 520 (CanLII), 2001 ABQB 520, [2001] A.J. No. 772.