“Just plead and get it over with.” Almost everyone who has been charged has heard this from someone: a cousin, a co-worker, or the voice in their own head after the third adjournment. And for some people, in some cases, it is sensible advice. A plea can bring certainty, reduce a sentence, spare witnesses, and let a person move on. For others it is the worst decision of their life, made in a hallway on a bad morning because they wanted the stress to stop.
A plea looks small in the courtroom. It takes a few minutes and one word. What follows can include a criminal record, immigration proceedings, a lost job and a finding that a civil court can rely on later. That gap between how easy it feels and how much it does is why it deserves careful thought.
This article gives general information about guilty pleas in Ontario courts and should not be treated as legal advice on whether you should plead. That decision should be made with a lawyer who has seen the evidence against you. If you do not have a lawyer, duty counsel at the Brampton courthouse can talk with you.
What a Plea Actually Is
A guilty plea is a formal admission of the essential elements of the offence. You are telling the court that the Crown does not have to prove the case because you accept that you did what is alleged, with the required state of mind.
Section 606(1.1) of the Criminal Code says the court may accept a plea only if it is satisfied of the following:
- you are making the plea voluntarily
- you understand that it is an admission of the essential elements of the offence
- you understand the nature and consequences of the plea
- you understand that the court is not bound by any agreement between you and the prosecutor
- the facts support the charge
Judges usually run through this in what is called a plea inquiry, and lawyers commonly prepare a signed document that covers the same ground. Take that conversation seriously. Saying “yes, Your Honour” in response to questions you did not really follow can make it much harder to undo the plea later. Note also that section 606(1.2) says a failure to fully inquire does not by itself make the plea invalid.
After the plea, the Crown reads out a summary of the facts. You will be asked whether they are correct. If you say you did not do something that is essential to the offence, the judge may refuse the plea. So you cannot really plead guilty while insisting you are innocent, and you should not try. If there are disputes on less central facts, these can sometimes be settled through an agreed statement, or at a short hearing. For aggravating facts that are disputed, the Crown must prove them beyond a reasonable doubt.
The Rights You Give Up
A person who pleads guilty generally gives up:
- The presumption of innocence and the Crown’s burden. The Crown never has to prove its case beyond a reasonable doubt.
- The right to a trial, including, in some matters, a jury trial.
- The chance to cross-examine witnesses. Weak identification, shaky memory and reluctant complainants are never tested.
- Charter arguments. Many issues about an unlawful stop, search, detention or denial of counsel are effectively abandoned, even where they might have excluded key evidence.
- The right to remain silent on those facts. You have admitted them on the record.
- Most grounds of appeal against conviction. An appeal against conviction after a plea is limited, and only in unusual situations does it succeed.
- A trial delay argument. A section 11(b) claim for unreasonable delay is generally gone.
This does not mean you should never plead. It means you should know what these options were worth in your particular case before giving them up. A Charter issue that a lawyer says has real force is a very different thing from a theoretical one.
Before You Decide, Get the Evidence
In most cases, nobody can sensibly advise on a plea until they have read the disclosure. A first appearance is usually too soon. People who feel desperate to finish often plead on the basis of what police told them or what they remember, when the Crown’s file may reveal gaps or may, in fact, show more than they feared.
A proper review asks a few questions. What can the Crown actually prove? Are the witnesses likely to attend, and are they reliable? Was the evidence obtained lawfully? Is this the right charge, or is there a lesser one that fits the facts? What would a likely sentence look like after a trial, compared with after a plea? What is the downside if you lose?
There are exceptions. Sometimes time is a real factor. A person held in custody may have to weigh a quick resolution against months in remand. A driver may be weighing an early plea to qualify for a provincial licence program with a strict deadline. Those are real pressures, and a lawyer can help you see whether speed is worth what it costs.
When a Plea Can Make Sense
Some of the more common reasons to resolve a case with a plea include:
The evidence is strong and there is no real legal issue. If the case is on clear video, or you have admitted it, a trial may only add cost and stress.
Early remorse can matter. A guilty plea is usually treated as a mitigating factor, because it shows responsibility and spares witnesses and the courts. The earlier it comes, usually the more weight it carries. In cases where a complainant would otherwise have to testify, this can matter a great deal.
A negotiated resolution offers a real benefit. The Crown may be prepared to withdraw some charges, accept a plea to a lesser or different offence, proceed summarily, or agree to a particular sentence. A plea to mischief instead of assault, for instance, or the withdrawal of a more serious count may change your future.
A discharge is on the table. Under section 730, a court can grant an absolute or conditional discharge for eligible offences, and the person is found guilty but not convicted. That can be a major benefit for someone with no record, and it is often the reason a plea is worthwhile. It still needs careful thought. It is still a finding of guilt, with some effects that last.
Treatment and rehabilitation. Taking responsibility early can allow a person to begin counselling or addiction treatment that a court can consider at sentencing.
Joint Submissions and Their Limits
Often, a plea comes with a joint submission, in which the Crown and defence both ask the judge for the same sentence. In R. v. Anthony-Cook, the Supreme Court of Canada held that a judge should not depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest. That is a high bar, and it gives both sides confidence in these agreements.
But it is not a guarantee. The Code itself requires you to understand that the court is not bound. A judge could impose something different, and you would generally not be able to walk away just because you disliked the result.
Also be clear on what the deal contains. Does it cover probation terms? A driving prohibition? A DNA order? A weapons ban? A registry order? Restitution? Some things are mandatory and cannot be bargained away. If the Crown is only agreeing to “not seek more than” a certain range, that is a cap, and you can still argue for less. It is not the same as a joint position.
Collateral Consequences: Check These First
Many regrets relate to effects that were never discussed. Depending on your situation, these can matter more than the sentence:
- Immigration status. This is the most urgent one in a city with so many permanent residents, international students and workers on permits. Under the Immigration and Refugee Protection Act, a conviction can lead to inadmissibility, loss of status or removal, and even a short sentence may affect appeal rights. A sentence of six months or more can remove a permanent resident’s right to appeal to the Immigration Appeal Division. Get immigration advice before any plea, not afterward.
- Employment and licensing. A record can affect nursing, teaching, security, real estate, financial services and any job involving bonding. Some regulators require you to report.
- Driving. Some convictions trigger automatic licence suspensions from the province.
- Civil lawsuits. Under section 22.1 of Ontario’s Evidence Act, proof of a conviction can be used as proof that the person committed the crime. A plea may help someone suing you.
- Family court. A plea to an assault may affect a parenting case. Family judges are required to consider violence when deciding on a child’s best interests.
- Travel. Entry to the United States can be refused based on a criminal record, including some records that might be considered minor in Canada. A Canadian pardon may not fix this.
- Record suspension wait times. Under the Criminal Records Act, you must wait after completing your sentence before you can apply. It is five years for a summary conviction and ten for an indictable one. A discharge may be removed from the RCMP’s records after one year (absolute) or three years (conditional).
Pleading to Avoid a Fight, When You Believe You Are Innocent
Sometimes a person who says they did not do it wants to plead to end the ordeal or get out of custody. It is a deeply human reaction, and it is dangerous. Lawyers have ethical limits under the Law Society’s rules on helping someone plead in these circumstances, and the facts have to be admitted in open court. There can also be alternatives, including a peace bond, diversion or a withdrawal, which do not require you to admit guilt. Before concluding that a plea is the only way out, ask what else may be possible. Your lawyer should tell you whether any such option is realistic.
Taking Back a Plea
Courts value finality, and withdrawing a plea is hard. It is possible, however, in limited circumstances, such as where the plea was not voluntary, not unequivocal, or not informed. In R. v. Wong, the Supreme Court held that a person who was unaware of a legally relevant collateral consequence, and who can show a reasonable possibility that they would have pleaded differently, may be able to withdraw the plea. There, the accused had not been told about immigration consequences. His request failed because he did not provide evidence of what he would have done differently.
The lesson is clear enough: ask every question before you plead. The time to think about your immigration, your job or your licence is before you say the word.
A Simple Check Before You Stand Up
Before you enter any plea, make sure you can honestly answer yes to these:
- Have I, or my lawyer, read all of the disclosure?
- Do I understand each element of the offence, and do I accept that I did it?
- Do I know what sentence the Crown is seeking, and what the judge could do if they disagree?
- Have I had advice on how this affects my status in Canada, my work and my driver’s licence?
- Have I considered the options other than a plea and trial, such as diversion or a peace bond?
If you are still unsure, it is usually possible to ask for more time. A short delay is generally better than a plea made in haste, although a judge may ask questions if your case has been around a long time.
If you would like a second look at a proposed resolution, including on charges such as assault or shoplifting, you can contact the office. Whatever you decide, it should be a decision you made after seeing the whole picture.