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THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD November 27, 2002

A plea bargain that was
beyond reproach


Last week Quebec Superior Court Justice Pierre Bliveau made an unusual remark before sentencing the six-biker gang members to prison on charges of drug trafficking and gangsterism .He declared that the plea bargain had been "thought and rethought at the highest levels of Quebec's Justice Department". He then went ahead and confirmed each one of the prison sentences that had been recommended by prosecutor, Madeleine Giauque and which ranged between 3 and 11 years.

The judge's remark was unusual because experienced prosecutors rarely consult their Associate Deputy Minister or Deputy Minister before striking deals with defense attorneys. It was also remarkable for another reason. Even in the rare cases when it is necessary or advisable for a prosecutor to obtain Quebec's O.K. it is almost never mentioned in the judge's ruling. By law every prosecutor is the agent of the Attorney General and therefore is presumed to speak on his behalf.

Justice Bliveau's unusual remark was nevertheless understandable. These were not typical sentences involving ordinary street corner toughs and the judge knew very well that his ruling would be the subject of extensive public and media scrutiny.

To begin with the six bikers were part of last summer's 17 Hells Angels mega trial, which was held at the specially built courthouse next to the Bordeaux jail in north-end Montreal. It was also one of the first cases that provided a detailed textbook lesson on gang hierarchy through ex-bikers who had become police informants. Their testimony provided an unusual insight on how members get promoted, how decisions are made on million dollar drug transactions, how scores are settled and who handles the money.


By the time Justice Bliveau inherited the cases the controversy was still swirling around Superior Court Justice Boilard's sudden decision to quit smack in the middle of the trial. It was estimated that Judge Bollard's decision could end up costing taxpayers in excess of $1-million seeing that the Crown had presented close to three months of evidence.

Justice Believe had little legal choice but to declare a mistrial and order a new trial. Had he continued the trial from where Justice Bollard desisted it would probably have led to any conviction being quashed by the appeal courts.

The plea bargaining surrounding the six bikers was clearly in a category of its own and in no way represented the downside of the practice. Seeing that prosecutor Madeleine Giauque had been specifically assigned to the biker cases, she was well acquainted with the particularities of each case and had all the time required to determine which plea would best suit the public interest. Not only was she able to seek out the opinion of other equally experienced colleagues, her recommendations were put through a fine tooth comb by the Quebec hierarchy. As for the police brass, they too had their say.

Conventional plea bargaining, which is so often criticized results from the limited resources of our judicial system. If every charge and sentence were to be contested in the true adversarial tradition our court system would be paralyzed within 24 hours. Even assuming there were enough courthouses to hear all of the cases, Canadian taxpayers would be obliged to pay for ten times the number of judges, crown attorneys and court personnel.

Like most prosecutors, plea bargaining was definitively a large part of my work, especially while I was the only prosecutor assigned to the Cowansville courthouse. No matter how many cases I would settle, there was always an endless supply of new ones piling up the following week.

While prosecutors almost never feel the need to consult their colleagues when they plea bargain ordinary cases, the practice is quite different when it comes to murder charges and other high profile cases. They are expected to bend backwards to make sure their final decisions are beyond public reproach. When necessary, indirect input can come from as high as the Deputy Minister and provincial Attorney General who is also the Minister of Justice.

During my years in Cowansville it wasn't unusual to arrive in court with a 25- page case role. Because of the volume of cases, negotiations would invariably take place in the adjoining conference room, in the corridors and occasionally while in court.

I can still visualize the half dozen or so regular defense lawyers lining up in the courthouse conference room and waiting their turn to negotiate pleas and sentences on behalf of their clients.


It was not unusual to settle a dozen cases within 30 minutes and almost always before the clerk was ready to call the court role. Charges, prison sentences and fines were all part and parcel of the discussions. Once the cases were settled they would be presented in court to be confirmed by the presiding judge.

Anyone who believes that plea bargaining is subject to judicial control is only partially right .A large part of plea bargaining has to do with withdrawing charges and substituting new ones so as to encourage guilty pleas. In this regards prosecutors have total discretion. Furthermore, if a prosecutor declares that the Crown has no proof to offer the presiding judge must either acquit or liberate the accused.

As for plea bargained sentences, their acceptance or refusal in court could depend as much on the specific judge assigned on any given day as on the experience and reputation of the attorneys involved. In my days, whenever a judge was known to turn down too many common recommendations the defense attorneys would begin postponing their clients' guilty pleas until the next judge was assigned.


It is impossible for a prosecutor to always strike a proper balance between encouraging guilty pleas in order avoid the uncertainty and costs of a trial and being certain that each plea bargain meets the public interest test. Among the many variables that have a direct impact are the sheer volume of cases, the frequent lack of time and information and finally the priorities and relative experience of the attorneys involved.

As for the plea bargain that led to Justice Bliveau's sentences, everything was in place to guarantee the best results.