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Canadian Criminal Sentencing/Guilty Plea

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When a Guilty Plea Can be Offered

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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 consent of the crown.[3]

  1. ↑ R v Denis 2005 QCCA 1089 at 38
  2. ↑ R. v. Jawbone, 1998 CanLII 6104 (MB CA)
  3. ↑ s. 606(4)

Acceptance of a guilty plea

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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]

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

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.

– [5]

A plea must be taken in the presence of an accused “unless the court orders otherwise”.[2] This would potentially include acceptance of pleas through the use of video links.[3]

For a guilty plea to be valid it must possess the following attributes:[4]

  • voluntary,
  • unequivocal,
  • informed of the nature of the allegations,
  • informed of the consequences of a plea
  1. ↑ R v Senior 1996 ABCA 71, 1996 116 CCC 3d 152 (ABCA)
    R v Shrupka 2000 MBCA 112, 2000 149 CCC 3d 410 (MBCA) at 24
  2. ↑ see s.650.01(3)(c)
  3. ↑ see 606(1.2); 650(1.1); 650(1.2)
  4. ↑ R. v. Hector 2000 CanLII 5725
    see also: R v Lyons [1987] 2 SCR 309 at p 371
    R v Claveau 2003 NBCA 52 at 7 R. v. Pottie, 1996 CanLII 5604, (1996) NSR 2d 56 (NSCA)

Inquiry into guilty plea

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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]

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.[3] The presumption is stronger where it is done after consulting with experienced counsel.[4]

  1. ↑ See Brosseau v. The Queen, [1969] S.C.R. 181, [1969] 3 C.C.C. 129 [1]
    Thibodeau v. The Queen, [1955] S.C.R. 646;[2]
    Adgey v. The Queen, [1975] 2 S.C.R. 426, 13 C.C.C. (2d) 177 [3]
    See: R. v. Lamoureux, (1984), 13 C.C.C. (3d) 101 (Que. C.A.)
    R. v. Antoine (1984) 40 C.R. (3d) 375 (Que. C.A.)
  2. ↑ see 606(1.2)
    Eizenga 2011 ONCA 113 at 47
    Messervey 2010 NSCA 55
    R. v. Walsh 2006 CanLII 7393 (ON CA), (2006), 206 C.C.C. (3d) 543 at 28
    R. v. G.T.(J.), 2003 BCCA 1 at 19
  3. ↑ R. v. Paiero, (1986), 71 N.S.R. (2d) 268 (C.A.)
  4. ↑ R v Swanson 2000 BCCA 177 at 24

Procedural Effect of a Guilty Plea

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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.[1] However, a plea is not formal proof of the underlying facts.[2]

A guilty plea is considered the end of the challenge to the criminal charge against the accused. [3] This also means that the guilty plea will extinguish any procedural rights, rights of appeal or ability to challenge the ruling of guilt.[4] 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.[5]

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 allegecd and invite the judge to convict.[6]

  1. ↑ R. v. C.(W.B.) 2000, 142 CCC 3d 490 (Ont.C.A.)
  2. ↑ R. v. Berry (1957) 118 CCC 55 (Ont.CA)
  3. ↑ R. v. Bowman, 2008 BCCA 410
    R. v. Duong, 2006 BCCA 325
  4. ↑ Korponay v Canada (Attorney General), 1982 CanLII 12 (SCC), [1982] 1 SCR 41 at p. 49
    Brady v US, 397 US 742 (1970) at p. 748
  5. ↑ See R. v. Duong, 2006 BCCA 325
  6. ↑ See R v Duong 2006 BCCA 325 at para.8
    Carter, 2003 BCCA 632 at para. 6
    Webster, 2008 BCCA 458 at paras. 19-22

Validity and Withdraw of Guilty Plea

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A guilty plea can be withdrawn any time before sentencing at the discretion of the trial judge. Where a withdraw is requested the trial judge is to inquire into the validity of the guilty plea. He may withdraw the plea at their discretion.[1] However, the discretion is reviewable by an appellate court.

Where the accused has already 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 where the plea resulted in a "miscarriage of justice" under s. 686(1)(a)(iii).

If the plea is valid it generally cannot be withdrawn.[2]

A plea in open court by an accused represented by counsel is presumptively valid.[3] Where the accused is represented by counsel there is a stronger presumption of validity.

The burden is upon the accused to establish the guilty plea as invalid. [4]

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.[5]

"Valid grounds" to withdraw a guilty plea can be in situations where the plea was not validly. [6] 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 [7]
    • 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[8]
  • the accused did not fully appreciate the nature of the charge or the effect of the plea.[9]

A further situation where the plea can be withdrawn is where there is a miscarriage of justice.[10] This includes where:

  • the accused has been given wrong legal advice[11]
  • if on the admitted facts, he could not be convicted of the offence[12]

Factors to consider include [13]

  1. whether the accused was represented by (experienced) counsel[14]
  2. whether the accused was apprised of his position[15]
  3. did the accused have a valid defence[16]
  4. was the plea given while under pressure and did he have enough time to contemplate the decision[17]
  5. whether the accused had experience in the criminal justice system (usually shown by a criminal record)[18]

If a judge performs the inquiry under s. 606(1.1) then it is unlikely that a judge should set aside the guilty plea.[19]

A change of plea is rarely granted, first, because of the mischief it could cause and the lack of certainly in plea deals, second, need to ensure fairness to the victims, complainants and witnesses involved. [20]

Representation by counsel is a significant factor.[21]

A co-accused who is acquitted does not change the validity of the guilty plea.[22]

Guilty plea are more likely be struck where there are English language problems.[23]

Where there was no meeting between the lawyer and the accused there will be a tendency to lean towards revoking the guilty plea.[24]

  1. ↑ R. v. Atlay 1992 CanLII 1081 (BCCA), (1992), 70 C.C.C. (3d) 553 (BCCA)
  2. ↑ R. v. Arcand, 2000 SKCA 60
    R. v. T.(R) 1992 CanLII 2834 (ON CA), (1992), 17 C.R. (4th) 247 (Ont. C.A.)
    R. v. Hector 2000 CanLII 5725
  3. ↑ R. v. Eide, 2011 SKCA 81
    R. v. Swanson, 2000 BCCA 177
  4. ↑ R v Eizenga 2011 ONCA 113, (2011) 270 CCC (3d) 168 (ONCA) at para 45-46
    R. v. Djekic 2000 CanLII 16822 (ON CA), (2000), 147 C.C.C. (3d) 572 (Ont C.A.)
    R. v. Rajaeefard 1996 CanLII 404 (ON CA), (1996), 104 C.C.C. (3d) 225 (Ont. C.A.)
    R. v. Rubenstein 1987 CanLII 2834 (ON CA), (1988), 41 C.C.C. (3d) 91 (Ont. C.A.)
    R v Morris 1994 BCCA
    R v Cloutier 2006 QCCA 277
    R v R.T. (1992) 10 OR (3d) 514 at p. 519
  5. ↑ R. v. Taillefer, Duguay, 2003 SCC 70 (CanLII), [2003] S.C.J. No. 75 at 431
    R. v . Adgey, 1973 CanLII 37 (SCC), [1975] 2 S.C.R. 426 (S.C.C.)
    Queen v. Bamsey 1960 CanLII 35 (SCC), (1960), S.C.R. 294 at p. 298 [4]
    R. v. Porter [1994] N.S.J. No.304 at para 25
  6. ↑ see R. v. Hoang, 2003 ABCA 251 at 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"
  7. ↑ e.g. R. v. S.K., 1995 CanLII 8926 (ONCA)
  8. ↑ see R. v. Nevin, 2006 NSCA 72
    R. v. Lamoureux, (1984), 13 C.C.C. (3d) 101 (Que.C.A.)
    R. v. Laperrière 1995 CanLII 4706 (QC CA), (1995), 101 C.C.C. (3d) 462, [1996] 2 S.C.R. 284
    R. v. Djekic 2000 CanLII 16822 (ON CA), (2000), 147 C.C.C. (3d) 572 (Ont.C.A.)
    R. v. Rajaeefard 1996 CanLII 404 (ON CA), (1996), 104 C.C.C. (3d) 225 (Ont.C.A.)
  9. ↑ see R. v. Melanson (1983), 59 N.S.R. (2d) 54 (C.A.)
  10. ↑ R. v. Gates, 2010 BCCA 378, 293 B.C.A.C. 243 at para. 2
  11. ↑ R v Armstrong, 1997 CanLII 1487 (ON CA), (1997) 33 WCB 2d 254 (ONCA) - lawyer gave advice that D was able to get discharge when it was not available
  12. ↑ R. v. Melanson (1983), 59 N.S.R. (2d) 54 (C.A.) at para. 6
  13. ↑ R. v. Joseph, [2000] B.C.J. No. 2850 (Q.L.)(B.C.S.C.) at 48
    R. v. Stockley, 2009 NLCA 38 at para. 7
  14. ↑ Joseph at 48
  15. ↑ Joseph at 48
  16. ↑ Joseph at 48
  17. ↑ Joseph at 48
  18. ↑ Joseph at 48
  19. ↑ R v Brun 2006 NBCA 17
  20. ↑ R v Hallam, 2003 BCPC 333, [2003] BCJ No 2176
    R. v. Murphy, 1995 CanLII 4329, [1995] N.S.J. No.41 at 10
  21. ↑ R v McCollum 2008 NSCA 36 at 10
  22. ↑ R v Hicks [1991] 3 SCR 383
  23. ↑ R v Meers 1991 CanLII 311 (BC CA)
    R v Golubev 2009 ONCA 333
  24. ↑ R v Golubev 2009 ONCA 333

Voluntariness

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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.[1]

Death threats is sufficient to vitiate voluntariness on a guilty plea.[2]

Guilty plea motivated by a desire to avoid tougher sentence will not be grounds of striking the plea.[3] Similarly, it is permissible for crown to suggest that if a guilty plea is entered, bail will not be opposed prior to sentence.[4]

  1. ↑ R. v. Carty, 2010 ONCA 237 -- Accused states "I think it is the best way."
  2. ↑ R v Easterbrook 2005 CanLII 12676 (ON CA)
  3. ↑ R v Burden 1996 CanLII 558 (ON CA) - accused plead guilty on suggestion of a dangerous offender application post trial
  4. ↑ R v Temple 1995 B.C.J. No. 331

Equivocation

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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]

  1. ↑ R. v. Lucas, (1983), 9 C.C.C. (3d) 71 at 75: "A conditional plea of guilty is unknown to our law".
  2. ↑ R. v. Fegan (1993) 80 CCC 3d 356
  3. ↑ R. v. Kleinsteuber, 1997 CanLII 3567 (BC CA) at 4-6
  4. ↑ R. v. Hunt 2004 ABCA 88 at 15
  5. ↑ R. v. Hughes, (1987), 76 A.R. 294 (C.A.)
    R. v. Burden 1996 CanLII 558 (ON CA), (1996), 90 O.A.C. 169 (Ont.C.A.)

Understands Admissions

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

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.[2] This follows the principle that guilty plea is only a bare admission and not acceptance of all surrounding circumstances.[3]

Where the accused was not aware of what he was pleading guilty to, then it will be struck.[4]

  1. ↑ R v Henry 2011 ONCA 289 - accused not able to listen to recordings making up allegations before plea, guilty plea invalidated
  2. ↑ R v Raymond, 2009 QCCA 808 at 100 and 114
  3. ↑ 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."
  4. ↑ R v .Halvorsen 1994 CanLII 1748 (BC CA)

Understand Consequences

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The accused has a right to know the immediate consequence of the guilty plea. This includes 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]

“Consequences” of the plea does not include knowledge of the long-term or external consequences to a guilty plea,[5] including the impact on their immigration status.[6]

The courts can take into account the overall impact of the guilty plea when deciding whether they understood the consequence.[7]

  1. ↑ R. v. T. (R.), 1992 CanLII 2834 (ON CA)
  2. ↑ R v Hoang 2003 ABCA at 36
    R v Raymond, 2009 QCCA 808 at 114
  3. ↑ see R. v. Slobodan, [1993] A.J. No. 11 (C.A.) R. v. Tyler, 2007 BCCA 142
    R. v. Hunt, 2004 ABCA 88
    R. v. Hoang, 2003 ABCA 251
    R. v. Fegan, (1993), 80 C.C.C. (3d) 356 (Ont.C.A.)
    R. v. Claveau, 2003 NBCA 52
  4. ↑ R v Riley 2010 NSCA at 45
  5. ↑ R v Hunt 2004 ABCA 88 at 15, 16
  6. ↑ R v Tyler 2007 BCCA 142
    R v Nersysyan 2005 QCCA 606
  7. ↑ R. v. Riley, 2011 NSCA 52 at 45

Miscarriage of Justice

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Valid grounds include where there is an appearance of unfairness.[1]

Unfairness would include where the accused was pressured or extorted into pleading guilty.[2]

  1. ↑ R v Stork (1975) 24 CCC 210 and R v Adgey 1975 at p 431
  2. ↑ R v Lamoureux, (1984) 13 CCC (3d) 101 (QCCA)
    R v Temple [1995] BCJ No 331 (BCCA)

Procedure for Appeal

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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 an 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]

  1. ↑ R. v. Wiebe, 2012 BCCA 519 (CanLII) at para. 22
  2. ↑ Wiebe at para. 22
  3. ↑ e.g. Wiebe at para. 22
    R. v. Hannon, 1999 BCCA 56 (CanLII)

Plea to Lesser Offences

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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.

– [6]

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), 75 O.R. (2d) 120 (Ont. C.A.)

See also

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