Informed Guilty Pleas

While I am a big proponent of taking matters to trial, there are circumstances where clients will decide to plead guilty.  Although I will provide advice on the benefits and risks of all options, ultimately the decision is up to the client; there may even be times where I feel a trial is in their best interest but the client still insists on a plea.

A lawyer cannot ethically assist with a plea unless the accused person admits to the facts that can substantiate the criminal offence with which they are pleading guilty.  If they claim innocence, or raise a defence, then the plea cannot be entered.  Some lawyers will explain to the court that they cannot assist with the entering of a plea but, if the court accepts the plea, will assist with sentencing.

In order for a plea to be accepted by the court, an accused person must also confirm a number of different things to the presiding Judge:

  1. They are pleading guilty out of their own free will and have not been coerced to enter the guilty plea by any party.
  2. They are aware that they are giving up their right to a trial.
  3. They are aware that the ultimate decision on sentence is at the discretion of the Judge who may decide not to accept any of the recommendations by counsel even if the sentencing position is “joint” as a result of a plea bargain (a Judge who does not go along with a joint submission is said to have “jumped” the submission).

The requirement to admit the facts makes perfect sense – one should not plead guilty unless they are, in fact, guilty.  In practice, though, people who are not prepared to admit guilt attempt to enter guilty pleas all the time.  For those who cannot make bail it may mean they will be released from custody considerably earlier than they would by waiting for a trial (it is not uncommon for the potential to be there for someone to be released on the same day as the plea).  Plea bargains may also make a plea too good to pass up as the Crown may be prepared to withdraw other charges or take a much more lenient sentencing position.  It is extremely common to see pleas being struck by the court because an accused, after pleading guilty, starts explaining their version of events and, in the process, does not admit the facts or raises a defence.

For more information on my criminal law practice, click here.

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