Guilty Plea

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Introduction

See also: Arraignment and Plea

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]

  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.[2]

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;
  1. ↑ R v Senior (1996), 181 A.R. 1(*no CanLII links) aff’d, 1997 CanLII 348 (SCC), [1997] 2 SCR 288, per Lamer CJ
    R v Hoang, 2003 ABCA 251 (CanLII), , 182 CCC (3d) 69, per Wittmann JA (3:0), at para 19
  2. ↑ see Sentencing

When a Guilty Plea Can be Entered

A guilty plea should not be entered where the accused denies guilt.[1]

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.[2]

A judge may accept a plea to an included offence only where there is the consent of the crown.[3]

  1. ↑ R v Denis, 2005 QCCA 1089 (CanLII), per curiam (3:0), at para 38
  2. ↑ R v Jawbone, 1998 CanLII 6104 (MB CA), per Scott CJ
  3. ↑ s. 606(4)

Remote Appearance

Section 650(2)(b) permits in "appropriate circumstances" guilty pleas to be permitted by audioconference where it is in the "interests of justice".[1]

Under s. 715.23, a court may order an accused to appear by audioconference for a guilty plea or sentencing.[2]

  1. ↑ R v Daley, 2020 ONCJ 201 (CanLII), at para 17
  2. ↑ Daley, ibid., at para 29

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.[1]

The "offering" or "tendering" of a guilty plea by an accused is a separate and distinct step from the judge formally accepting the plea.[2]

Section 606(1.1) is a codification of the common law.[3]

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.
[omitted (1)]

Conditions for accepting guilty plea

(1.1) A court may accept a plea of guilty only if it is satisfied that

(a) the accused is making the plea voluntarily;
(b) the accused 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; and
(c) the facts support the charge.
Validity of plea

(1.2) The failure of the court to fully inquire whether the conditions set out in subsection (1.1) [conditions for accepting guilty plea] are met does not affect the validity of the plea.
[omitted (2), (3), (4), (4.1), (4.2), (4.3), (4.4) and (5)]
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; 2019, c. 25, s. 268.

– CCC

Note up: 606(1.1) and (1.2)

A plea must be taken in the presence of an accused “unless the court orders otherwise”.[4] This would potentially include acceptance of pleas through the use of video links.[5]

606
[omitted (1), (2), (3), (4), (4.1), (4.2), (4.3) and (4.4)]

Video links

(5) For greater certainty, subsections 650(1.1) [video link attendance at trial — not taking evidence] and (1.2) [video link attendance at trial — when taking evidence] 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

Note up: 606(5)

For a guilty plea to be valid it must possess the following attributes:[6]

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

The judge has the discretion of whether to accept or reject a guilty plea. [7] This discretion is one that "if exercised judicially, will not be lightly interfered with".[8] This is so in order to promote the "gravity, finality and integrity of the process."[9]

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.[10]

  1. ↑ R v Senior, 1996 ABCA 71 (CanLII), , 1996 116 CCC (3d) 152 (ABCA), per curiam (3:0)
    R v Shrupka, 2000 MBCA 112 (CanLII), , (2000) 149 CCC (3d) 410 (MBCA), per Helper JA (3:0) at 24
  2. ↑ R v Cataract, 1994 CanLII 4616 (SK CA), , [1994] S.J. No. 524, per Bayda CJ (3:0), at para 15 ("It is made perfectly clear by this decision that the entering by an accused of a guilty plea is one step in the proceeding and the acceptance of that plea by the judge is a separate and distinct step.")
  3. ↑ R v Sullivan, 2004 BCSC 683 (CanLII), per Cole J, at para 21
    R v Peters, 2014 BCSC 983 (CanLII), per Romilly J, at para 9
  4. ↑ see s.650.01(3)(c)
  5. ↑ see 606(1.2); 650(1.1); 650(1.2)
  6. ↑ R v Hector, 2000 CanLII 5725 (ONCA), per Finlayson JA (3:0)
    see also: R v Lyons, 1987 CanLII 25 (SCC), , [1987] 2 SCR 309, per La Forest J (5:2), at p. 371
    R v Leonard, 2007 SKCA 128 (CanLII), per Richards JA (3:0), at para 17
    R v Claveau, 2003 NBCA 52 (CanLII), per Deschênes JA (3:0), at para 7
    R v Pottie, 1996 CanLII 5604, , (1996) NSR 2d 56 (NSCA), per Pugsley JA (3:0)
    R v Fegan, 1993 CanLII 8607 (ON CA), , (1993) 80 CCC (3d) 356 (Ont. C.A.), per Finlayson JA (3:0), at p. 360
    R v RT, 1992 CanLII 2834, , 17 CR (4th) 247 (ON CA), per Doherty JA (3:0), at p. 252 (Ont. C.A.) ("To constitute a valid guilty plea, the plea must be voluntary and unequivocal. The plea must also be informed, that is the accused must be aware of the nature of the allegations made against him, the effect of his plea, and the consequence of his plea.")
  7. ↑ R v Hoang, 2003 ABCA 251 (CanLII), at para 18
  8. ↑ Thibodeou v The Queen, 1955 CanLII 57 (SCC), , [1955] SCR 646, per Cartwright J (5:0), at p. 654
    see also R v Adgey, 1973 CanLII 37 (SCC), , [1975] 2 SCR 426, per Dickson J (3:2), at p. 430
  9. ↑ R v Hoang, 2003 ABCA 251 (CanLII), per Wittmann JA (3:0), at para 24
  10. ↑ R v Cataract, 1994 CanLII 4616 (SK CA), , [1994] S.J. No. 524, per Bayda CJ (3:0)
    R v IBB, 2009 SKPC 76 (CanLII), per Whelan J
    R v Corkum, 1984 ABCA 226 (CanLII), per Stevenson JA (3:0)

Voluntariness

Voluntariness of a plea refers to the "conscious volitional decision" of the accused to plea guilty "for reasons which he ... regards as appropriate".[1] It is one that is not the product of "coercion or duress".[2]

A voluntary plea requires" the conscious volitional decision of the accused to plead guilty for reasons which he or she regards as appropriate".[3]

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.[4]

Death threats are sufficient to vitiate voluntariness on a guilty plea.[5]

A judge is not obliged to inquire into the motive for a guilty plea.[6]

Guilty plea motivated by a desire to avoid tougher sentence will not be grounds of striking the plea.[7] Similarly, it is permissible for the crown to suggest that if a guilty plea is entered, bail will not be opposed prior to sentence.[8]

There is no requirement that the accused's voluntarily decision must be rational or objectively in the accused's best interests.[9]

Limited Cognitive Capacity

A person of limited cognitive capacity must have "an ability to understand the process and make an active or conscious choice". [10]

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.[11]

Wilful Blindness

The accused should not be permitted to rely upon wilful blindness to establish that the plea was involuntary.[12]

  1. ↑ R v Campbell, 2014 NBPC 36 (CanLII), per Cloutier J, at para 42
    R v Rosen, 1979 CanLII 59 (SCC), , [1980] 1 SCR 961, per Mclntyre J (8:1), at p. 974, 51 CCC (2d) 65, at p. 75
  2. ↑ R v Peters, 2014 BCSC 983 (CanLII), per Romilly J, at para 11
  3. ↑ R v RT, 1992 CanLII 2834 (ON CA), , 10 O.R. (3d) 514 (C.A.), per Doherty JA (3:0), at p. 520
  4. ↑ R v Carty, 2010 ONCA 237 (CanLII), per Doherty JA -- Accused states "I think it is the best way."
  5. ↑ R v Easterbrook, 2005 CanLII 12676 (ON CA), per curiam
  6. ↑ R v Khanfoussi, 2010 QCCQ 8687 (CanLII), , [2010] J.Q. No.10303 (QL), per Healy J
  7. ↑ R v Burden, 1996 CanLII 558 (ON CA), per curiam (3:0) - accused plead guilty on the suggestion of a dangerous offender application post-trial
  8. ↑ R v Temple, 1994 CanLII 3056 (BC CA), (1995), BCJ No. 331, per Taylor JA
  9. ↑ R v MAW, 2008 ONCA 555 (CanLII), per Laskin JA, at para 33
  10. ↑ MAW, ibid., at para 33
  11. ↑ R v Henneberry, 2017 NSCA 71 (CanLII), per Beveridge JA, at para 25 ("This standard only requires that a court need be satisfied the accused understands the process, can communicate with counsel, and be able to make a conscious choice. It need not be a choice that is objectively wise, rational or necessarily in the accused’s best interests.")
  12. ↑ R v Girn, 2019 ONCA 202 (CanLII), at paras 62 to 3, 79.

Equivocation

Any conditional guilty plea, such as admission of guilt only where a particular outcome be granted, is not a guilty plea at all.[1]

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.[2] 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.[3]

A withdraw could be supported where the accused asserts a potential valid defence.[4]

A guilty plea made merely to gain some sort of perceived advantage is not enough to invalidate the plea.[5]

An unequivocal plea is one that is "clear, plain, and capable of being understood in only one way".[6]

Where the charges are read personally to the accused before the plea, it will tend to "demonstrate the unequivocal character of the plea".[7]

  1. ↑ R v Lucas, 1983 CanLII 3600 (ON CA), (1983), 9 CCC (3d) 71, per Martin JA (3:0), at p. 75 ("A conditional plea of guilty is unknown to our law")
  2. ↑ R v Fegan, 1993 CanLII 8607 (ON CA), , (1993) 80 CCC (3d) 356, per Finlayson JA (3:0)
  3. ↑ R v Kleinsteuber, 1997 CanLII 3567 (BC CA), per Esson JA (3:0) at 4-6
  4. ↑ R v Hunt, 2004 ABCA 88 (CanLII), per Wittmann JA (3:0), at para 15
    R v Peters, 2014 BCSC 983 (CanLII), per Romilly J, at para 11
    cf. R v Rulli, 2011 ONCA 18 (CanLII), per curiam (3:0)
  5. ↑ R v Hughes, 1987 ABCA 69 (CanLII), , (1987), 76 A.R. 294 (C.A.), per McClung JA (3:0)
    R v Burden, 1996 CanLII 558 (ON CA), , (1996), 90 O.A.C. 169 (Ont. CA), per curiam (3:0)
  6. ↑ Peters, supra, at para 11
  7. ↑ R v Campbell, 2014 NBPC 36 (CanLII), per Cloutier J, at para 40
    R v T(R), 1992 CanLII 2834 (ON CA), , (1992), 10 O.R. (3d) 514 (C.A.), per Doherty JA (3:0), at pp. 520-521
    R v Eastmond, 2001 CanLII 7498 (ON CA), , [2001] OJ No 4353 (C.A.), per curiam (3:0), at para 6
    R v Moser, 2002 CanLII 49649 (ON SC), , (2002), 163 CCC (3d) 286 (Ont. S.C.), per Hill J, at para 32

Informed

A guilty plea that is informed has two components:[1]

  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.

For a guilty plea to be withdrawn on the basis that the accused was not aware of the relevant consequences of the guilty plea, the accused must establish that there was a subjective prejudice.[2] To that end, they must establish, usually by affidavit, that there was a "reasonable possibility" that he would have":[3]

  1. "opted for a trial" or
  2. pleaded guilty but with different conditions.

There is no requirement that there be a valid defence.[4]

  1. ↑ R v RT, 1992 CanLII 2834 (ON CA), , 10 O.R. (3d) 514 (CA), per Doherty JA (3:0), at para 14
    R v Quick, 2016 ONCA 95 (CanLII), per Laskin JA (3:0)
    R v Chen, 2017 ONCA 946 (CanLII), per curiam (3:0), at para 45
  2. ↑ R v Wong, 2018 SCC 25 (CanLII), per Moldaver, Gascon and Brown JJ (4:3)
  3. ↑ Wong, ibid.
  4. ↑ Wong, ibid.

Understands Admissions

The accused must have sufficient information regarding the nature of the charges against him.[1]

A guilty plea is informed where the accused has been provided with disclosure of the relevant facts of the case against him.[2]

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".[3]

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.[4] This follows the principle that guilty plea is only a bare admission and not acceptance of all surrounding circumstances.[5]

There is no need that there be an agreed statement of facts.[6]

Where the accused was not aware of what he was pleading guilty to, then it will be struck.[7]

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.".[8]

  1. ↑ R v Henry, 2011 ONCA 289 (CanLII), per Watt JA (3:0) - accused not able to listen to recordings making up allegations before plea, guilty plea invalidated
  2. ↑ R v Peters, 2014 BCSC 983 (CanLII), per Romilly J, at para 11
  3. ↑ R v White, 2016 NSCA 20 (CanLII), per Bryson JA, at para 41
  4. ↑ R v Raymond, 2009 QCCA 808 (CanLII), per Morin JA (3:0), at paras 100 and 114
  5. ↑ See s. 655 which states "Where an accused is on trial for an indictable offence, he or his counsel may admit any fact alleged against him for the purpose of dispensing with proof thereof."
    see also Guilty Plea#Agreed and Disputed Facts at Sentence below.
  6. ↑ R v Campbell, 2014 NBPC 36 (CanLII), per Cloutier J, at para 43
  7. ↑ R v Halvorsen, 1994 CanLII 1748 (BC CA), per Hollinrake JA (3:0)
  8. ↑ Peters, supra, at para 11

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.[1] This does not include all possible consequences.[2]

Lack of knowledge of the consequences of pleading guilty is not necessarily determinative.[3]Instead, more seems to rely upon the impact on the decision, if the accused had been informed.[4]

An awareness of the effect and consequences of a guilty plea does not include knowledge of what the result of the sentencing will be".[5]

“Consequences” of the plea does not include knowledge of the long-term or external consequences to a guilty plea[6], including the impact on their immigration status.[7]

The courts can take into account the overall impact of the guilty plea when deciding whether they understood the consequence.[8]

Advice

Inaccurate advice can render a plea invalid.[9] This can include erroneous advice as to the available sentences.[10] On a lack of awareness of certain non-criminal sanctions that flow from the conviction.[11]

It is not necessary that all consequences are canvassed, in particular, "surprising" consequences will not permit a new trial.[12]

Immigration Consequences

It will likely be insufficient if counsel simply inform the client of "serious consequences" without going into "specifics" of the immigration consequences of a guilty plea.[13]

  1. ↑ R v T(R), 1992 CanLII 2834 (ON CA), per Doherty JA (3:0), at para 37
    R v Meehan, 2013 ONSC 1782 (CanLII), per Durno J, at para 10
  2. ↑ R v Hoang, 2003 ABCA 251 (CanLII), per Wittmann JA (3:0), at 36
    R v Raymond, 2009 QCCA 808 (CanLII), per Morin JA (3:0), at para 114
  3. ↑ see R v Slobodan, 1993 ABCA 33 (CanLII), , [1993] AJ No 11 (C.A.), per Fraser CJ (3:0)
    R v Tyler, 2007 BCCA 142 (CanLII), per Donald JA (3:0)
    R v Hunt, 2004 ABCA 88 (CanLII), per Whittmann JA (3:0)
    Hoang, supra
    R v Fegan, 1993 CanLII 8607 (ON CA), , (1993), 80 CCC (3d) 356 (Ont.C.A.), per Finlayson JA (3:0)
    R v Claveau, 2003 NBCA 52 (CanLII), per Deschênes JA (3:0)
  4. ↑ R v Riley, 2011 NSCA 52 (CanLII), per Beveridge JA (3:0), at para 45
  5. ↑ R v Peters, 2014 BCSC 983 (CanLII), per Romilly J, at para 11
  6. ↑ Hunt, supra, at paras 15, 16
  7. ↑ R v Tyler, 2007 BCCA 142 (CanLII), per Donald JA (3:0)
    R v Nersysyan, 2005 QCCA 606 (CanLII), per curiam (3:0)
    R v Meehan, 2013 ONSC 1782 (CanLII), per Durno J
  8. ↑ Riley, supra, at para 45
  9. ↑ e.g. R v Tzeng, 2007 CanLII 6935 (ON SC), , [2007] OJ No 878 (S.C.J.), per Durno J
    Meehan, supra, at paras 12 to 13
  10. ↑ R v Armstrong, 1997 CanLII 1487 (ON CA), , [1997] OJ No 45, per curiam (3:0)
  11. ↑ e.g. R v Stewart, 2002 CanLII 16206 (ON SC), , (2002), 33 M.V.R. (4th) 103 (S.C.J.), per Glass J
    R v Fells, 2003 CanLII 31609 (ON SC), , [2003] O.J. NO. 1392 (S.C.J.), per Kruzick J - unaware of effect of a discharge
  12. ↑ R v Closs, 1998 CanLII 1921 (ON CA), , [1998] OJ No 172, per Carthy JA (“There are many negative consequences of having a criminal conviction and it cannot be expected that these will all be explained to an accused prior to a plea; nor should the convicted person expect the judicial system to provide a fresh start when a surprising consequence of the conviction is encountered.”)
  13. ↑ e.g. R v Rineda, 2019 ONCA 935 (CanLII), at para 10 ("While his lawyer told him that there may be serious immigration consequences arising from his guilty pleas, his lawyer admits that he did not “get into the specifics”. Rather, he told the appellant that he should seek the advice of an immigration lawyer. Knowing that the in-custody appellant had not done so, and did not know the “specifics” about the consequences of a guilty plea, the lawyer assisted the appellant with entering his plea.")

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.[1]

Valid grounds include where there is an appearance of unfairness.[2]

Unfairness would include where the accused was pressured or extorted into pleading guilty.[3]

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.[4]

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.[5]

Counsel who gives wrong legal advice may be a basis for there to be a miscarriage of justice.[6]

  1. ↑ R v Peters, 2014 BCSC 983 (CanLII), per Romilly J, at para 11
  2. ↑ R v Stork, 1975 CanLII 1258 (BC CA), (1975) 24 CCC 210,, per Farris CJ (3:0)
    R v Adgey, 1973 CanLII 37 (CanLII), per Dickson J (3:2), at p. 431
  3. ↑ R v Lamoureux, 1984 CanLII 3492 (QC CA), , (1984) 13 CCC (3d) 101 (QCCA), per Rothman JA (3:0)
    R v Temple, 1994 CanLII 3056 (BC CA), , [1995] BCJ No 331 (BCCA),, per Taylor JA
  4. ↑ Peters, supra, at para 11
  5. ↑ Peters, supra, at para 11
  6. ↑ R v White, 2009 NSSC 313 (CanLII), per Cacchione J, at para 10

Inquiry Into Guilty Plea

The judge has discretion to inquire into whether the accused meets these criteria.[1]

A judge need not “fully inquire” into whether 606(1.1) is met before accepting a guilty plea.[2] It is nonetheless recommended that an inquiry be made into the 606(1.1) criteria.[3]

606
...

Validity of plea

(1.2) The failure of the court to fully inquire whether the conditions set out in subsection (1.1) [conditions for accepting guilty plea] 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; 2015, c. 13, s. 21; 2019, c. 25, s. 268.

– CCC

Note up: 606(1.2)

Where an accused is represented by counsel, the judge may presume that counsel canvassed the elements under s. 606(1.1).[4]

The extent of the inquiry will vary with the seriousness of the charge.[5]

Where the plea is entered in open court it is presumed valid.[6]

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.[7] The presumption is stronger where it is done after consulting with experienced counsel.[8]

The judge has a duty to "satisfy himself that the accused admits sufficient facts to sustain the plea".[9]

  1. ↑ See Brosseau v The Queen, 1968 CanLII 59 (SCC), , [1969] SCR 181, per Cartwright CJ (4:1)
    Thibodeau v The Queen, 1955 CanLII 57 (SCC), , [1955] SCR 646, per Cartwright J (5:0)
    Adgey v The Queen, 1973 CanLII 37 (SCC), , [1975] 2 SCR 426, 13 CCC (2d) 177, per Dickson J (3:2)
    R v Hoang, 2003 ABCA 251 (CanLII), per Wittmann JA (3:0), at paras 1g4b9{{{3}}}, 21 to 24
    See: R v Lamoureux, 1984 CanLII 3492, , 13 CCC (3d) 101 (Que. C.A.), per Rothman JA (3:0)
    R v Antoine (1984) 40 CR (3d) 375 (Que. C.A.)(*no CanLII links)
  2. ↑ see 606(1.2)
    R v Eizenga, 2011 ONCA 113 (CanLII), per Weiler JA (3:0), at para 47
    R v Messervey, 2010 NSCA 55 (CanLII), per Beveridge JA (3:0)
    R v Walsh, 2006 CanLII 7393 (ON CA), per Armstrong JA (3:0), at para 28
    R v JGT, 2003 BCCA 1 (CanLII), per Rowles JA (3:0), at para 19
  3. ↑ R v Gates2010 BCCA 378(*no CanLII links) , at paras 21-22
    R v Leiviska, 2011 BCCA 145 (CanLII), per Chiasson JA, at para 25
    JGT, supra, at para 19
  4. ↑ R v Peters, 2014 BCSC 983 (CanLII), per Romilly J, at para 11
  5. ↑ R v Hoang, 2003 ABCA 251 (CanLII), per Wittmann JA (3:0), at para 21
  6. ↑ See below citing R v Eide, 2011 SKCA 81 (CanLII), per Klebuc JA (3:0), at para 8
  7. ↑ R v Paiero, (1986), 71 NSR (2d) 268 (C.A.)(*no CanLII links)
  8. ↑ R v Swanson, 2000 BCCA 177 (CanLII), per Prowse JA (3:0), at para 24
  9. ↑ Peters, supra, at para 11

Procedural Effect of a Guilty Plea

Once a plea has been made it is considered formal proof of the offence committed. There is no longer burden on the Crown to prove the charge beyond a reasonable doubt.[1] It is considered admission of the essential legal ingredients to the offence.[2] However, a plea is not formal proof of the underlying facts. [3]

A guilty plea is considered the end of the challenge to the criminal charge against the accused. [4] In pleading guilty, the accused is consenting to a conviction being entered without a trial.[5] This also means that the guilty plea will extinguish any procedural rights, rights of appeal or ability to challenge the ruling of guilt.[6] 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.[7]

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.[8]

  1. ↑ R v WBC, 2000 CanLII 5659 (ONCA), , 142 CCC (3d) 490 (Ont.C.A.), per Wiler JA (2:1)
    R v Wong, 2018 SCC 25 (CanLII), per Moldaver, Gascon and Brown JJ, at para 2 ("By pleading guilty, an accused waives his or her constitutional right to a trial, relieving the Crown of its burden to prove guilt beyond a reasonable doubt.")
  2. ↑ R v Gardiner, 1982 CanLII 30 (CanLII), per Dickson J (4:3)
    R v Hoang, 2003 ABCA 251 (CanLII), per Wittmann JA (3:0), at para 17
  3. ↑ R v Berry, 1957 CanLII 505 (ON CA), (1957) 118 CCC 55 (Ont.CA), per Roach JA (5:0)
  4. ↑ R v Bowman, 2008 BCCA 410 (CanLII), per Lowry JA (3:0)
    R v Duong, 2006 BCCA 325 (CanLII), per Rowles JA (3:0)
  5. ↑ Hoang, supra, at para 17
  6. ↑ Korponay v Canada (Attorney General), 1982 CanLII 12 (SCC), , [1982] 1 SCR 41, per Lamer J (9:0), at p. 49
    R v Richard, 1996 CanLII 185 (CanLII), per La Forest J (9:0)
    Brady v US, 397 US 742 (1970), at p. 748
  7. ↑ See Duong, supra
  8. ↑ See Duong, ibid., at para 8
    R v Carter, 2003 BCCA 632 (CanLII), per Finch CJ, at para 6
    R v Webster, 2008 BCCA 458 (CanLII), per Frankel JA (3:0), at paras 19 to 22
    cf. R v Liberatore, 2014 NSCA 109 (CanLII), per Fichaud JA (3:0), at para 13

Withdrawing a Guilty Plea

A guilty plea can be expunged by either the trial judge or by an appellate court.[1]

  1. ↑ R v Leonard, 2007 SKCA 128 (CanLII), per Richards JA (3:0) , at para 19

Presumptions and Burdens

If the plea is valid it generally cannot be withdrawn.[1] Likewise, an appellate court cannot quash a conviction where the guilty plea was valid.[2]

The accused "bears the onus of demonstrating that the plea is not valid".[3]

A plea in open court by an accused represented by counsel is presumptively valid.[4] Where the accused is represented by counsel there is a strong presumption of validity.[5]

The burden is upon the accused to establish the guilty plea as invalid. [6] This is on the standard of balance of probabilities.[7]

An accused represented by counsel is presumed to be familiar with the circumstances surrounding the offence and the consequences of the plea.[8]

Public policy suggests that a guilty plea should not be withdrawn "except in exceptional circumstances".[9] 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.[10] 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.[11]

  1. ↑ R v T(R), 1992 CanLII 2834 (ON CA), , (1992), 17 CR (4th) 247 (Ont. C.A.), per Doherty JA (3:0)
    R v Hector, 2000 CanLII 5725 (ONCA), per Finlayson JA (3:0)
  2. ↑ R v Arcand, 2000 SKCA 60 (CanLII), per Cameron JA, at para 3 ("the law empowers an appellate court to expunge a guilty plea ... and to quash the resulting conviction, but only on valid grounds. It is not within the power of an appellate court to expunge a voluntary, unequivocal, and informed plea of guilty, made by a person unaware of the nature of the allegations, the effect of the plea, and its consequences")
  3. ↑ R v Eastmond, 2001 CanLII 7498 (ON CA), , [2001] Carswell Ont 3911 (O.C.A.),, per curiam (3:0), at para 6
    see also, R v Clermont, 1996 CanLII 10244 (NS CA), , 150 NSR (2d) 264 (NSCA), per Clarke CJ
  4. ↑ R v Eide, 2011 SKCA 81 (CanLII), per Klebuc JA (3:0)
    R v Swanson, 2000 BCCA 177 (CanLII), per Prowse JA (3:0)
  5. ↑ R v Laffin, 2009 NSCA 19 (CanLII), , [2009] NSJ No. 66, per Hamilton JA (3:0), at para 44
    R v Eizenga, 2011 ONCA 113 (CanLII), , [2011] OJ No 524, per Weiler JA (3:0), at para 4
  6. ↑ Eizenga, ibid., at paras 45 to 46
    R v Djekic, 2000 CanLII 16822 (ONCA), , 147 CCC (3d) 572 (Ont C.A.), per curiam (3:0), at para 6: on appeal the accused has burden to establish plea was invalid
    R v Rajaeefard, 1996 CanLII 404 (ON CA), , 104 CCC (3d) 225, per Morden ACJ (2:1)
    R v Rubenstein, 1987 CanLII 2834 (ON CA), , 41 CCC (3d) 91, per Zuber JA
    R v Cloutier, 2006 QCCA 277 (CanLII), per Martin JA (3:0)
    T(R), supra, at p. 519
    Brun v R, 2006 NBCA 17 (CanLII), per curiam (3:0), at para 8
  7. ↑ R v Eizenga, 2011 ONCA 113 (CanLII), per Weiler JA (3:0)
  8. ↑ R v Paiero, [1986] NSJ No. 98 (NSCA)(*no CanLII links)
    R v McKinnon, 2007 ABQB 432 (CanLII), per Belzil J, at para 54
  9. ↑ R v Hoang, 2003 ABCA 251 (CanLII), per Wittmann JA (3:0), at para 25
  10. ↑ Hoang, ibid., at paras 25 to 27
  11. ↑ Hoang, ibid., at para 27

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.[1]

A guilty plea can be withdrawn at the discretion of the trial judge at any time before sentencing.[2] This discretion should be exercised "judicially". [3] 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).[4]

  1. ↑ see above on Validity of a Guilty Plea
  2. ↑ R v Atlay, 1992 CanLII 1081 (BCCA), , (1992), 70 CCC (3d) 553 (BCCA), per McEachern JA (3:0)
    Thibodeau v R, 1955 CanLII 57 (SCC), , [1955] SCR 646, per Cartwright J (5:0), at para 21
  3. ↑ Thibodeau, ibid., at para 21
  4. ↑ see below re Appealing a Guilty Plea

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]

  1. whether the accused was represented by (experienced) counsel[2]
  2. whether the accused was apprised of his position[3]
  3. did the accused have a valid defence[4]
  4. was the plea given while under pressure and did he have enough time to contemplate the decision[5]
  5. whether the accused had experience in the criminal justice system (usually shown by a criminal record)[6]
  6. the adequacy of the judge's inquiry into the plea[7]

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.”[8]

If a judge performs the inquiry under s. 606(1.1) then it is unlikely that a judge should set aside the guilty plea.[9]

  1. ↑
    R v Adgey, 1973 CanLII 37 (CanLII), per Dickson J (3:2), at para 49
    R v Joseph, 2000 BCSC 1891 (CanLII), , [2000] BCJ No. 2850 (Q.L.)(B.C.S.C.), per Taylor J at 48
    R v Stockley, 2009 NLCA 38 (CanLII), per Roberts JA (3:0), at para 7
    R v Nevin, 2006 NSCA 72 (CanLII), per Bateman JA (3:0), at para 20
  2. ↑ Joseph at 48
  3. ↑ Joseph, supra at 48
  4. ↑ Joseph, supra at 48
  5. ↑ Joseph at 48
  6. ↑ Joseph, supra at 48
  7. ↑ R v Jack, 2012 BCSC 1991 (CanLII), per Fitch J, at para 64
  8. ↑ Adgey, supra, at para 49
  9. ↑ R v Brun, 2006 NBCA 17 (CanLII), per curiam (3:0)

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

See also: Appeals

An appellate Court may expunge a guilty plea and quash a conviction on "valid grounds".[1]

The onus is upon the appellant to establish that the plea was invalid on a balance of probabilities.[2]

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".[3]

The Court of Appeal may also undo a guilty plea on the basis of a "miscarriage of justice" under s. 686(1)(a)(iii).[4]

  1. ↑ R v Adgey, 1973 CanLII 37 (SCC), , [1975] 2 SCR 426 (SCC), per Dickson J (3:2)
    R v RT, 1992 CanLII 2834 (ON CA), , 10 O.R. (3d) 514 (C.A.), per Doherty JA (3:0) - Doherty stated that “[a]n accused who is convicted upon his or her plea of guilty may appeal that conviction. An appellate court will permit the withdrawal of a guilty plea and quash the consequent conviction where there are "valid grounds" for doing so: .... No finite list of all "valid grounds" can be provided.”
  2. ↑ R v Easterbrook, 2005 CanLII 12676 (ON CA), , [2005] OJ No. 1486 (ONCA), per curiam (3:0)
  3. ↑ R v Kinney, 2011 SKCA 122 (CanLII), , 377 Sask.R. 107, per Caldwell JA (3:0), at para 2
    R v Arcand, 2000 SKCA 60 (CanLII), per Cameron JA (3:0)
    RT, supra, at para 14
  4. ↑ see also Appeals#Miscarriage of Justice (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.[1]

There must be "valid grounds" to withdraw a guilty plea.[2] This includes where there is:[3]

  • 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 [4]
    • 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[5]
  • the accused did not fully appreciate the nature of the charge or the effect of the plea.[6]
  • the accused plea guilty to get some short term advantage[7]

A further situation where the plea can be withdrawn is where there is a miscarriage of justice.[8] This includes where:

  • the accused has been given wrong legal advice[9]
  • if on the admitted facts, he could not be convicted of the offence[10]

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. [11]

Representation by counsel is a significant factor.[12]

A co-accused who is acquitted does not change the validity of the guilty plea.[13]

Guilty plea are more likely be struck where there are English language problems.[14]

Where there was no meeting between the lawyer and the accused there will be a tendency to lean towards revoking the guilty plea.[15]

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.[16]

  1. ↑ R v Taillefer, Duguay, 2003 SCC 70 (CanLII), , [2003] S.C.J. No. 75, per LeBel J (9:0) at 431
    R v Adgey, 1973 CanLII 37 (SCC), , [1975] 2 SCR 426 (SCC), per Dickson J (3:2)
    Queen v Bamsey, 1960 CanLII 35 (SCC), , (1960), SCR 294, per Ritchie J (7:0), at p. 298
    R v Porter, 1994 CanLII 4019 (NS CA), , NSJ No. 304, per Pugsley JA (2:1), at para 25
  2. ↑ Adgey, supra, at p. 431
  3. ↑ see R v Hoang, 2003 ABCA 251 (CanLII), per Wittmann JA (3:0), at para 30 ("the appellant did not appreciate the nature of the charge, or the appellant did not intend to admit that he was guilty of it; or where upon the admitted facts, the appellant could not in law have been convicted of the offence charged")
    R v McLaughlin, 2013 NBCA 28 (CanLII), per curiam (3:0)
  4. ↑ e.g. R v SK, 1995 CanLII 8926 (ONCA), per Carthy JA (3:0)
  5. ↑ see R v Nevin, 2006 NSCA 72 (CanLII), per Bateman JA (3:0)
    R v Lamoureux, 1984 CanLII 3492 (QC CA), , (1984), 13 CCC (3d) 101 (Que.C.A.), per Rothman JA (3:0)
    R v Laperrière, 1995 CanLII 4706 (QC CA), (1995), 101 CCC (3d) 462, per Bisson JA aff'd [1996] 2 SCR 284, per La Forest J (7:0)
    R v Djekic, 2000 CanLII 16822 (ONCA), , 147 CCC (3d) 572 (Ont.C.A.), per curiam (3:0)
    R v Rajaeefard, 1996 CanLII 404 (ONCA), , 104 CCC (3d) 225 (Ont.C.A.), per Morden ACJ (2:1)
  6. ↑ see R v Melanson (1983), 59 NSR (2d) 54 (C.A.)(*no CanLII links)
  7. ↑ R v Tyler, 2007 BCCA 142 (CanLII), , 218 CCC (3d) 400 (BCCA), per Donald JA (3:0)
    R v Meehan, 2013 ONSC 1782 (CanLII), per Durno J, at para 19
  8. ↑ R v Gates, 2010 BCCA 378, 293 BCAC 243(*no CanLII links) , at para 2
  9. ↑ R v Armstrong, 1997 CanLII 1487 (ON CA), , (1997) 33 WCB 2d 254 (ONCA), per curiam (3:0) - lawyer gave advice that D was able to get discharge when it was not available
  10. ↑ Melanson, supra, at para 6
  11. ↑ R v Hallam, 2003 BCPC 333 (CanLII), , [2003] BCJ No 2176, per Brecknell J
    R v Murphy, 1995 CanLII 4329, , [1995] NSJ No. 41, per Chipman JA (3:0) at 10
  12. ↑ R v McCollum, 2008 NSCA 36 (CanLII), per Bateman JA (3:0), at para 10
  13. ↑ R v Hick, 1991 CanLII 47 (CanLII), per Stevenson J (5:0)
  14. ↑ R v Meers, 1991 CanLII 311 (BC CA), per curiam (3:0)
    R v Golubev, 2009 ONCA 333 (CanLII), per curiam (3:0)
  15. ↑ R v Golubev, 2009 ONCA 333 (CanLII), per curiam (3:0)
  16. ↑ R v Eastmond, 2001 CanLII 7498 (ON CA), , [2001] OJ No 4353 (C.A.), per curiam (3:0), at paras 6 to 7
    R v Dallaire, 2001 CanLII 8276 (ON CA), , [2001] OJ No 1722 (C.A.), per curiam (3:0), at para 2
    R v Thissen, 1998 CanLII 2713 (ON CA), , [1998] OJ No 1982 (C.A.), per curiam (3:0), at para 6
    R v Moser, 2002 CanLII 49649 (ON SC), , (2002), 163 CCC (3d) 286 (Ont. S.C.), per Hill J, at paras 34, 37 to 39

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".[1]

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.[2] 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.[3]

An appellant must obtain leave of the appellate court to withdraw the plea.[4]

Appeal of an Application to Withdraw

Factual findings of the trial judge on an application to withdraw is "accorded significant deference".[5]

  1. ↑ R v Wiebe, 2012 BCCA 519 (CanLII), per Ryan JA (3:0), at para 22
  2. ↑ Wiebe, ibid., at para 22
  3. ↑ e.g. Wiebe, ibid., at para 22
    R v Hannon, 1999 BCCA 56 (CanLII), per Goldie JA (3:0)
  4. ↑ R v Hoang, 2003 ABCA 251 (CanLII), per Wittmann JA (3:0), at para 15 ("the appellant must obtain leave to withdraw his plea of guilty. This hurdle may be overcome where the Crown concedes the invalidity of the plea of guilty as was the case in Fegan and Claveau.")
  5. ↑ see R v Leonard, 2007 SKCA 128 (CanLII), per Richards JA (3:0), at para 21

Jury Trials

A guilty plea before the commencement of a jury trial is to be accepted by the presiding judge.[1] A change of plea during a jury trial should be done to the judge presiding.[2] 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.[3] 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.[4]

  1. ↑ R v Luis (1989) 20 CCC (3d) 298 (Ont HCJ)(*no CanLII links)
  2. ↑ eg. R v Rowbothham, 1994 CanLII 93 (CanLII), per Lamer CJ (7:0), at para 36 - judge accepts a “directed verdict” of not guilty
    see also Ewaschuk, Criminal Pleadings and Practice in Canada at 14:1080
  3. ↑ R v Murray, 2000 NBCA 2 (CanLII), per Ryan JA (3:0)
  4. ↑ See R v Walker, 1939 CanLII 2 (SCC), , [1939] SCR 214, per Duff CJ (5:0)

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

Note up: 606(4)

Even where the crown consents to accepting a guilty plea for a lesser offence, the judge has discretion to reject it.[1]

  1. ↑ R v Naraindeen, 1990 CanLII 6731 (ON CA), , (1990), 75 O.R. (2d) 120 (Ont. C.A.), per Morden ACJ

Agreed and Disputed Facts at Sentence

See also: Admissions of Fact

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.[1]

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.[2]

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. [3]

A plea does not become invalid on the basis that there is no agreed statement of fact.[4]

  1. ↑ R v Gardiner, 1982 CanLII 30 (CanLII), per Dickson J (4:3)
    R v Hoang, 2003 ABCA 251 (CanLII), per Wittmann JA (3:0), at para 17
  2. ↑ R v Hunt, 2002 ABCA 155 (CanLII), per curiam (3:0), at paras 15, 18
  3. ↑ Suggested in R v Hunt , at para 17
  4. ↑ R v Campbell, 2014 NBPC 36 (CanLII), per Cloutier J, at para 43
    R v Peters, 2014 BCSC 983 (CanLII), per Romilly J, at para 12

Youth Guilty Plea

See Also

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