Guilty Plea

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Introduction

A plea of guilty is the process by which a person admits criminal liability to an offence charged resulting in a conviction being entered and the forfeiting of a trial.

This process has three steps:

1. the entry of a guilty plea
2. the acceptance of the plea, and
3. the recording of the conviction.

Once a guilty plea has been entered the trial judge must impose a penalty for each of the charges associated with the guilty plea.

A plea may be undone in one of several ways:

• the trial judge may expunge the guilty plea on the grounds that it was invalid;
• the trial judge may expunge the guilty plea at his discretion where the plea was unjust;
• the court of appeal may expunge a guilty plea on the basis that the acceptance caused a miscarriage of justice;
• the court of appeal may expunge a guilty plea on the basis that the trial judge improperly refused to expunge it;

When a Guilty Plea Can be Entered

A guilty plea should not be entered where the accused denies guilt.

If the accused does not remember or recall the incident, the judge may still accept the guilty plea so long as the accused is capable to accept the allegation as correct.

A judge may accept a plea to an included offence only where there is consent of the crown.

Acceptance of a Guilty Plea

A conviction or finding of guilt is not entered until such time as the court accepts the plea. A plea by itself is not enough.

The "offering" or "tendering" of a guilty plea by an accused is a separate and distinct step from the judge formally accepting the plea.

Section 606(1.1) is a codification of the common law.

A plea of guilty can only be accepted by the Court if the requirements of s. 606(1.1) are satisfied. The provision states:

Pleas permitted
606.
...
(1.1) A court may accept a plea of guilty only if it is satisfied that the accused

(a) is making the plea voluntarily; and

(b) understands

(i)that the plea is an admission of the essential elements of the offence,

(ii)the nature and consequences of the plea, and

(iii)that the court is not bound by any agreement made between the accused and the prosecutor.

Validity of plea
(1.2) The failure of the court to fully inquire whether the conditions set out in subsection (1.1) are met does not affect the validity of the plea. ...
R.S., 1985, c. C-46, s. 606; R.S., 1985, c. 27 (1st Supp.), s. 125; 2002, c. 13, s. 49.

– CCC

A plea must be taken in the presence of an accused “unless the court orders otherwise”. This would potentially include acceptance of pleas through the use of video links.

606
...
Video links
(5) For greater certainty, subsections 650(1.1) and (1.2) apply, with any modifications that the circumstances require, to pleas under this section if the accused has agreed to use a means referred to in those subsections.
R.S., 1985, c. C-46, s. 606; R.S., 1985, c. 27 (1st Supp.), s. 125; 2002, c. 13, s. 49; 2015, c. 13, s. 21.

– CCC

For a guilty plea to be valid it must possess the following attributes:

• voluntary,
• unequivocal,
• informed of the nature of the allegations and of the consequences of a plea.

The judge has the discretion whether the accept or reject a guilty plea. This discretion is one that "if exercised judicially, will not be lightly interfered with". This is so in order to promote the "gravity, finality and integrity of the process."

While it is not essential for the acceptance of a guilty plea, it is recommended that the facts should be read to the judge before he accepts the guilty plea.

Voluntariness

Voluntariness of a plea refers to the "conscious volitional decision" of the accused to plea guilty "for reasons which he ... regards as appropriate". It is one that is not the product of "coercion or duress".

A voluntary plea requires" the conscious volitional decision of the accused to plead guilty for reasons which he or she regards as appropriate".

An accused who feels under pressure to plead guilty is not generally enough to vitiate voluntariness. It is expected that a persons facing serious charges will feel pressure at the time of plea.

Death threats are sufficient to vitiate voluntariness on a guilty plea.

A judge is not obliged to inquire into the motive for a guilty plea.

Guilty plea motivated by a desire to avoid tougher sentence will not be grounds of striking the plea. Similarly, it is permissible for the crown to suggest that if a guilty plea is entered, bail will not be opposed prior to sentence.

There is no requirement that the accused's voluntarily decision must be rational or objectively in the accused's best interests.

Limited Cognitive Capacity
A person of limited cognitive capacity must have "an ability to understand the process and make an active or conscious choice".

In all, the court must simply be satisfied that the accused (1) understands the process, (2) can communicate with counsel, and (3) be able to make a conscious choice" regardless of whether it is in their best interest.

Equivocation

Any conditional guilty plea, such as admission of guilt only where a particular outcome be granted, is not a guilty plea at all.

A guilty plea is considered conditional where the plea was done on advice of the lawyer who was mistaken to believe that an appeal of conviction and ruling would be possible after the plea was entered. It is also conditional where the crown offers to allow a withdraw of a guilty plea if the judge does not adopt the joint recommendation.

A withdraw could be supported where the accused asserts a potential valid defence.

A guilty plea made merely to gain some sort of perceived advantage is not enough to invalidate the plea.

An unequivocal plea is one that is "clear, plain, and capable of being understood in only one way".

Where the charges are read personally to the accused before the plea, it will tend to "demonstrate the unequivocal character of the plea".

Informed

A guilty plea that is informed has two components:

1. the accused must be aware of the nature of the allegations; and
2. the accused must be aware of the consequences of the plea.

Understands Admissions

The accused must have sufficient information regarding the nature of the charges against him.

A guilty plea is informed where the accused has been provided with disclosure of the relevant facts of the case against him.

A guilty plea will be found not to be informed where there is "an objective basis to convinced a court that there is a responsible possibility that a reasonable person in the same circumstances as the [accused] would have refused to plead guilty".

The accused need only be aware of the “essential facts” to make out the charge and not the full extent of the details to plea guilty. This follows the principle that guilty plea is only a bare admission and not acceptance of all surrounding circumstances.

There is no need that there be an agreed statement of facts.

Where the accused was not aware of what he was pleading guilty to, then it will be struck.

A failure to disclose some evidence will not entitle a withdrawal of guilty plea unless a "reasonable and properly informed person, put in the same situation as the accused, would have run the risk of standing trial if he or she had had timely knowledge of the undisclosed evidence.".

Understand Consequences

The accused has a right to know the immediate consequence of the gulity plea. This includes "the realization that convictions would flow" and an appreciation of the nature of the potential penalties. This does not include all possible consequences.

Lack of knowledge of the consequences of pleading guilty is not necessarily determinative.Instead, more seems to rely upon the impact on the decision, if the accused had been informed.

An awareness of the effect and consequences of a guilty plea does not include knowledge of what the result of the sentencing will be".

“Consequences” of the plea does not include knowledge of the long-term or external consequences to a guilty plea, including the impact on their immigration status.

The courts can take into account the overall impact of the guilty plea when deciding whether they understood the consequence.

Advice
Inaccurate advice can render a plea invalid. This can include erroneous advice as to the available sentences. On a lack of awareness of certain non-criminal sanctions that flow from the conviction.

It is not necessary that all consequences are canvassed, in particular "surprising" consequences will not permit a new trial.

Miscarriage of Justice

An accused seeking to withdraw a guilty plea should show that a miscarriage of justice would result if the plea is not withdrawn.

Valid grounds include where there is an appearance of unfairness.

Unfairness would include where the accused was pressured or extorted into pleading guilty.

There is no miscarriage of justice here it appears that the accused is attempting to cause "mischief" by obstructing the process, postponing sentence or is merely dissatisfied with the result.

The motive to enter a guilty plea is only relevant insofar as it is relevant to the issue of whether there was a miscarriage of justice.

Counsel who gives wrong legal advice may be a basis for there to be a miscarriage of justice.

Inquiry Into Guilty Plea

The judge has discretion to inquire into whether the accused meets these criteria.

A judge need not “fully inquire” into whether 606(1.1) is met before accepting a guilty plea. It is nonetheless recommended that an inquiry be made into the 606(1.1) criteria.

606
...
Validity of plea
(1.2) The failure of the court to fully inquire whether the conditions set out in subsection (1.1) are met does not affect the validity of the plea.
...

– CCC

Where an accused is represented by counsel, the judge may presume that counsel canvassed the elements under s. 606(1.1).

The extent of the inquiry will vary with the seriousness of the charge.

Where the plea is entered in open court it is presumed valid.

When entered with counsel it is presumed that the accused was "fully familiar with the circumstances surrounding the offence and to have been aware of the consequences of entering a guilty plea. The presumption is stronger where it is done after consulting with experienced counsel.

The judge has a duty to "satisfy himself that the accused admits sufficient facts to sustain the plea".

Procedural Effect of a Guilty Plea

Once a plea has been made it is considered formal proof of the offence committed. There is no burden on the Crown to prove the charge beyond a reasonable doubt. It is considered admission of the essential legal ingredients to the offence. However, a plea is not formal proof of the underlying facts.

A guilty plea is considered the end of the challenge to the criminal charge against the accused. In pleading guilty, the accused is consenting to a conviction being entered without a trial. This also means that the guilty plea will extinguish any procedural rights, rights of appeal or ability to challenge the ruling of guilt. There can only be a re-opening of the issue of admissibility of the evidence if the accused was not aware of the effect of the guilty plea.

Where a Charter application fails and there remains no further defence, the proper procedure to preserve the right of appeal is to admit the facts alleged and invite the judge to convict.

Withdrawing a Guilty Plea

A guilty plea can be expunged by either the trial judge or by an appellate court.

Presumptions and Burdens

If the plea is valid it generally cannot be withdrawn. Likewise, an appellate court cannot quash a conviction where the guilty plea was valid.

The accused "bears the onus of demonstrating that the plea is not valid".

A plea in open court by an accused represented by counsel is presumptively valid. Where the accused is represented by counsel there is a strong presumption of validity.

The burden is upon the accused to establish the guilty plea as invalid. This is on the standard of balance of probabilities.

An accused represented by counsel is presumed to be familiar with the circumstances surrounding the offence and the consequences of the plea.

Public policy suggests that a guilty plea should not be withdrawn "except in exceptional circumstances". Both parties benefit from guilty pleas. The accused is given the mitigating effect of the plea and will sometimes have other charges withdrawn. The Crown and courts will forgo the costs associated with having a trial. The validity of a guilty plea promotes essential values of the administration of justice. As such a plea should be withdrawn only where the plea results in a miscarriage of justice which arise from either an invalid guilty plea or some other prejudice that results from the plea.

Trial Judge Withdraw or Invalidate a Guilty Plea

There are two overlapping bases for a judge to withdraw a guilty plea:

1. the plea was found to be invalid; or
2. at the discretion of the judge.

The validity is determined on the basis of the essential elements of a plea being voluntary, unequivocal, and informed.

A guilty plea can be withdrawn at the discretion of the trial judge at any time before sentencing. This discretion should be exercised "judicially". However, the discretion is reviewable by an appellate court.

If the accused has been sentenced and wishes to withdraw the guilty plea, the trial judge is functus and has no jurisdiction to consider an application. An appellate court may only interfere with a guilty plea and quash it where the plea resulted in a "miscarriage of justice" under s. 686(1)(a)(iii).

Discretion of Trial Judge to Rescind Guilty Plea

The trial judge may rescind a guilty plea at his discretion on the basis of the Adgey factors including:

1. whether the accused was represented by (experienced) counsel
2. whether the accused was apprised of his position
3. did the accused have a valid defence
4. was the plea given while under pressure and did he have enough time to contemplate the decision
5. whether the accused had experience in the criminal justice system (usually shown by a criminal record)
6. the adequacy of the judge's inquiry into the plea

The overarching factor in this analysis is whether the accused can establish that “his plea was wrong and it would be unjust to uphold the plea.”

If a judge performs the inquiry under s. 606(1.1) then it is unlikely that a judge should set aside the guilty plea.

Appeal of a Guilty Plea or Refusal to Rescind a Guilty Plea

An appellate Court may expunge a guilty plea and quash a conviction on "valid grounds".

The onus is upon the appellant to establish that the plea was invalid on a balance of probabilities.

The appellate court may not expunge a plea that is "voluntary, unequivocal and informed guilty plea made by a person aware of the nature of the allegations, the effect of a plea and its consequences".

The Court of Appeal may also undo a guilty plea on the basis of a "miscarriage of justice" under s. 686(1)(a)(iii).

Grounds

An appellate court has the ability to remove a guilty plea and quash a conviction where there are "valid grounds" to do so. What constitutes valid grounds is open-ended and can include a variety of situations.

There must be "valid grounds" to withdraw a guilty plea. This includes where there is:

• a misunderstanding by the accused of the nature of the charge
• a misunderstanding by the accused of the effect of his plea, such as where
  • the accused never intended to admit guilt
  • there was a serious question as to the accused's mental state at the time of entering the plea
• improper inducements or threats by the police, defence counsel, or the trial judge
• the accused did not fully appreciate the nature of the charge or the effect of the plea.
• the accused plea guilty to get some short term advantage

A further situation where the plea can be withdrawn is where there is a miscarriage of justice. This includes where:

• the accused has been given wrong legal advice
• if on the admitted facts, he could not be convicted of the offence

A change of plea is rarely granted, first, because of the mischief it could cause and the lack of certainty in plea deals, second, need to ensure fairness to the victims, complainants and witnesses involved.

Representation by counsel is a significant factor.

A co-accused who is acquitted does not change the validity of the guilty plea.

Guilty plea are more likely be struck where there are English language problems.

Where there was no meeting between the lawyer and the accused there will be a tendency to lean towards revoking the guilty plea.

Where the accused has counsel, and with the absence of any challenge to professionalism or competence, the court may infer that counsel took necessary steps to ensure the accused understood the nature and consequences of the plea.

Procedure for Withdrawing Guilty Plea

Proving the invalidity of a guilty plea may be established by the record. However, if it is not apparent from the record, the court must have the appellant file his "own affidavit and any other affidavit that might be relevant to the issue".

If the grounds includes an allegation of misconduct or incompetence of previous defence counsel, the Crown may get a affidavit from the previous defence counsel to respond to the allegations. The previous defence counsel is still bound by solicitor-client privilege unless waived.

Under s. 683, either side may apply to cross-examine the affiant.

An appellant must obtain leave of the appellate court to withdraw the plea.

Appeal of an Application to Withdraw
Factual findings of the trial judge on an application to withdraw is "accorded significant deference".

Jury Trials

A guilty plea before the commencement of a jury trial is to be accepted by the presiding judge. A change of plea during a jury trial should be done to the judge presiding. This is despite the fact that the accused was put in charge of the jury.

The accused does not need to re-elect to another mode of trial to put in the guilty plea. By contrast, the older method would involve the jury taking the plea directly from the accused, if the guilty plea were to occur during the trial.

Plea to Lesser Offences

A judge can accept a guilty plea to an offence listed in the charge or any other charge arising from the same transaction where the Crown consents. Under s. 606(4), a guilty plea to a lesser included offence in permissible as stated:

s. 606
...
Included or other offence
(4) Notwithstanding any other provision of this Act, where an accused or defendant pleads not guilty of the offence charged but guilty of any other offence arising out of the same transaction, whether or not it is an included offence, the court may, with the consent of the prosecutor, accept that plea of guilty and, if the plea is accepted, the court shall find the accused or defendant not guilty of the offence charged and find him guilty of the offence in respect of which the plea of guilty was accepted and enter those findings in the record of the court.
...
R.S., 1985, c. C-46, s. 606; R.S., 1985, c. 27 (1st Supp.), s. 125; 2002, c. 13, s. 49.

– CCC

Even where the crown consents to accepting a guilty plea for a lesser offence, the judge has discretion to reject it.

Agreed and Disputed Facts at Sentence

A guilty plea is only an admission of the essential facts to make out the elements of the offence. Any facts beyond those essential facts must either be agreed upon by the parties or evidence must be called.

Adjudicative fairness requires that both sides stay within the facts established by an agreed statement of fact or else it must be proven by evidence. Parties cannot engage in ambushing each other with new facts.

As a matter of practice, counsel should provide a "common statement of facts in a written form". The value of this is that there will be no surprises and bind both parties. It also prevents further modification or addition by other parties such as probation officers and medical professionals who are involved with case afterwards.

A plea does not become invalid on the basis that there is no agreed statement of fact.

Youth Guilty Plea

• Procedure for Young Accused#Guilty Plea

See Also

• Guilty Pleas (Cases)
• Ineffective Counsel
• Joint Recommendations
• Precedents and Checklists - includes guilty plea checklist