Even though they teach negotiation in most law schools, my experience as a Crown Attorney suggests that some lawyers throw these lessons out the window the moment they pass the bar. I spent most of my time as a Crown not being negotiated with as much as being complained at.
My position was unreasonable. The system was unfair. The judge sitting that day was a tyrant. Their client was innocent, the complainant was a filthy liar, and the entire proceeding was a travesty.
Over six years, I heard every excuse and complaint under the sun. Sadly, many of those complaints were probably true. My positions were sometimes unreasonable. The system was definitely unfair. Some judges were tyrants. And many of the accused whose release I opposed were likely innocent, at least to one degree or another.
The fact remains, though, that of all the times I was complained at by defence counsel, I never once changed a position because of it. Complaining simply didn’t work.
Neither did hectoring, bullying, shouting, fighting, threatening, or arguing.
That last one surprises some people. We’re lawyers, after all. Shouldn’t we argue our positions?
In a word, no. Arguments are for judges. Arguing with the Crown might feel good. It might make you feel like you’re standing up to the man. But it doesn’t help your client get out of jail. In fact, it only gives the Crown more motivation to “win.”
For conversations with the Crown, principled negotiation remains the best way to win the release of a client.
An Easy-Peasy, Lemon-Squeezy Approach to Negotiating Bail
In case you don’t have the time or the inclination to read negotiation textbooks, I’ll share a quick, one-size-fits-all approach to negotiating with a Crown Attorney to secure the release of your client.
General Principles of Negotiation
There are a few general principles you’ll want to keep in mind when negotiating bail:
Take an interest-based approach
Before you approach the Crown Attorney, have a set of interests in mind. Based on your conversations with the client and your review of the file you should know what your ideal release plan is. You should know what conditions are deal breakers and what conditions your client can abide by (at least until you arrange a bail review). You should know which conditions are most likely to impact this client’s liberty.
In other words, know what you want and why you want it.
Have an indifference point
Sometimes called a “reservation value,” this is the least attractive agreement you will accept. Based on your review of the file and your conversations with your client, you want to have a clear picture in your mind of the most restrictive release plan you will accept.
Remember your BATNA
A BATNA is your “best alternative to negotiated agreement.” In this context, it’s a contested bail hearing. The BATNA for the Crown Attorney and the defence are exactly the same. However, you should always keep in mind that the stakes are much higher for your client than they are for the Crown.
Consider the Crown’s interests
Never forget that there’s a living, breathing person with their own interests on the other side of the negotiation. Crown Attorneys, the good, the bad, and the ugly, balance a multitude of interests when coming to their positions. Each one will do this differently.
Remember that you’re not getting your client out by consent unless that particular Crown perceives that their interests, and the interests of their client (the public), have been reasonably satisfied.
Step 1: Framing the negotiation
The first question out of a lot of defence lawyers’ mouths when negotiating bail is a quick, “What’s your position on release?” or “Are you opposed?”
I get it. You’re in a hurry. It’s bail court. Maybe you’re duty counsel with a million other people to talk to that day. But, when you walk onto a car dealership parking lot does the salesman rush up to you and hurriedly ask, “What’s your position on buying a car right now?” When someone proposes marriage to their partner do they ask, “Are you opposed to marrying me?”
Instead of asking the Crown if he or she is opposed, consider asking, “Do you have any concerns about releasing Mr. Smith?”
Step 2: Actively listen
The Crown will now be forced to articulate what exactly they fear will happen if your client is released. Make note of their objections to release. Literally. Make notes as they speak. Crowns, like most lawyers, love being listened to and they’ll appreciate the fact that you’re listening closely.
It’s a small courtesy but, after having been yelled at by some other lawyer for five minutes over another file, it may mean the world to this Crown. It sounds stupid, but people care about the little things.
Step 3: Consider the Crown’s concerns
Ask for a few moments to consider the nature of the Crown’s objections to release:
- Are they reasonable and likely to persuade a judge?
- Are they addressable with conditions that can be justified and that your client can follow?
- Are they based on admissible evidence that meets the credible and trustworthy standard in s. 518(1)(e) of the Code?
Step 4: Narrow the Concerns
Having considered the basis and nature of the Crown’s concerns, narrow them. Note where they seem to be based on mere conjecture, speculation, or stereotypes. Note where they are fanciful, controversial, or unlikely to be shared by a judge.
Try not to get bogged down in areas that are highly arguable. For example, don’t dismiss the evidence relied upon by the Crown simply because your client has offered an alternative version of events.
Step 5: Refine the parameters of the discussion
Return to the Crown and share with them your view of the risks associated with the release of your client. Highlight those areas of concern that seem to be unsupported by the admissible evidence and suggest that they may wish to reconsider their view, providing them with good reasons to do so.
Suggest an alternative and refined scope of risk that more accurately reflects the admissible evidence you can both reasonably produce at this early stage of the case. Try to reach an agreement with the Crown with respect to the sorts of risks posed by your client on the primary, secondary, and tertiary grounds.
It’s okay if you disagree about the size of the risks or the weight they should be given. But it’s important that, at this stage, you and the Crown be on the same page regarding the nature of the risks.
Step 6: Assess the possibility of a reasonable agreement
By now, you should have some idea if a reasonable consent release is achievable with this Crown. If they’ve proven amenable to discussing their concerns about release and agree with you with respect to the nature of the risks, a release by consent may be possible.
I say may be possible for a reason. In some cases, the only way to address a Crown’s legitimate concern is to impose a condition your client has no hope of following. In these cases, you have only three options:
- Eliminate the concern in the mind of the Crown,
- Agree to the condition and hope to God you can succeed on a bail review, or
- Move on to a contested release hearing.
Step 7: Propose a plan
Propose a plan of release that adequately addresses the valid concerns raised by the Crown. Explain how your plan addresses these risks for your particular client.
Step 8: Deal with objections
The Crown may, reasonably or unreasonably, take the position that your plan does not, in fact, address the risks posed by your client. In these cases, some reminders are helpful:
- An adequately addressed risk is one in which the risk has been brought to a level below substantial. Complete elimination of the risk cannot be the standard.
- The severity of the likely consequences of a re-offence must be considered along with its probability. Even if a re-offence is relatively likely, if the record demonstrates a lack of dangerousness or seriousness, this should weigh in favor of release.
The Crown may propose additional conditions. Consider reminding the Crown that:
- Just as with the principle of totality in sentencing, the combined effect of all the conditions must be proportional to the risks being addressed. Piling on conditions can result in a crushing loss of liberty that is out of proportion to the harm being avoided.
- The conditions they propose may be “nice to have” but are not demonstrably necessary.
Step 9: Secure an agreement
At this point, you may be able to secure an agreement with the Crown regarding release. That agreement can take several forms:
- An agreement respecting release will be a complete agreement to release on agreed-upon conditions. The classic “consent release.”
- An agreement to restrict argument at a contested hearing to whether one or more controversial conditions should be imposed. In other words, the Crown would seek to show cause that the accused should be released with conditions rather than show cause that the accused should be detained.
Some Crowns will be unwilling to agree to the second arrangement. I often was, and I now think that position was wrong in principle.
Remind the Crown that the goal is not to detain the accused. In fact, the goal should be to release the accused. If the Crown’s position reverts to detention in the absence of a negotiated agreement, ask them what they hope to achieve should they be successful in the hearing. If they “win,” they’ve just secured the detention (and the attendant costs in both lost liberty and lost dollars) of someone who, by their own admission, doesn’t need to be detained.
Don’t consider yourself unsuccessful if all you can secure is an agreement to limit argument at a contested hearing. Not all negotiations can end in complete agreement, and limiting your client’s exposure to the risk of detention is a victory.
Miscellaneous Tips for Negotiating Bail
Here are a handful of tips for negotiating bail with Crown Attorneys in a busy docket court.
If you take only one lesson from this entire article it should be this: Do not haggle. Do not horse trade. Do not trade one condition for another. However you choose to phrase it, do not find yourself in a situation where you’re arguing over positions instead of interests.
These are the cases where you find yourself “meeting the Crown halfway” or “splitting the difference.” These are usually atrocious agreements that don’t satisfy either public safety or your client’s interests. Stick with interest-based negotiation.
If a Crown asks why you’re not “meeting them halfway,” remind them that halfway between reasonable and unreasonable is still half-unreasonable. You should do everything you can to help the Crown achieve their legitimate interests where those are aligned with your client’s interests. You should not care one whit about helping the Crown achieve their position.
Don’t Strenuously Argue Points A Crown Isn’t Permitted to Consider
Crowns are bound by a tangle of policies, positions, unwritten rules, and customs that will help or harm your cause to varying degrees. For example, Crown policy in many provinces creates guidelines for bail in domestic violence cases that can make little to no sense in an individual case.
There’s nothing wrong with asking a Crown to depart from these less-than-reasonable policies and positions. Just don’t expect them to be agreeable.
And don’t push the issue. They’ll dig in, you’ll lose valuable time, and damage your relationship with that Crown for no reason.
Instead, clarify the exact nature and source of their position on the issue and argue the issue before a judge.
For example, if the Crown is of the view that they must ask for a no contact provision in each and every allegation of domestic violence, use this to your advantage during the bail hearing. Remind the judge that such a policy is contrary to law (and is likely contrary to the Crown’s own written policy manual.)
There is no room in the law of bail for “policies.” There is only law. But don’t expect a Crown Attorney to jeopardize their job just to help your client. That’s not realistic. Just tell it to the judge.
Use Emotional Arguments Wisely
Crowns vary wildly in their tendency to accept emotional arguments. Generally, however, principled approaches to the law of bail are more successful than nakedly emotional ones. The fact that your client will miss Christmas with her family if she’s denied bail will be less persuasive than the fact that her detention is not justified on the secondary ground.
I was once taught that persuasion is about showing someone where you want to go, giving them a good reason to want to go there with you, and showing them how to get there.
When you want to make an appeal to emotion, remember the function that it plays in persuasion. It’s a reason you give the Crown to make them want to agree with you. You’ll still need to show them why they should agree and how to structure the agreement.
So, don’t argue that the Crown should let your client go because she misses her kids. Remind the Crown that your client has a 5-year-old and a 3-year-old, they’re named Jen and Amy, and they miss their mom and might have to go into care if your client is not released. Then argue your client should be released because she doesn’t meet the primary, secondary, or tertiary grounds for detention.
Hopefully, this post has been halfway helpful. I don’t pretend that it’s the definitive approach to negotiating bail. It is, however, based on about five years of experience as a Crown dealing with both good and bad defence lawyers using a variety of approaches to get their clients out.
Some of these lawyers were ineffective. Some were effective. A few were so good that they could have talked me into buying the accused a fancy dinner on top of agreeing to the consent release. It’s this last group that made the most use of the techniques I’ve outlined above.
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