Canadian Criminal Sentencing/Guilty Plea

When a Guilty Plea Can be Offered
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.

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

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.

For a guilty plea to be valid it must possess the following attributes:
 * voluntary,
 * unequivocal,
 * informed of the nature of the allegations,
 * informed of the consequences of a plea

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.

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.

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. 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. 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 allegecd and invite the judge to convict.

Validity and Withdraw of Guilty Plea
A guilty plea can be withdrawn any time before sentencing at the discretion of the trial judge.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. 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.

A plea in open court by an accused represented by counsel is presumptively valid. 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.

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.

"Valid grounds" to withdraw a guilty plea can be in situations where the plea was not validly. 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.

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

Factors to consider include
 * 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)

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

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.

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.

Voluntariness
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 is sufficient to vitiate voluntariness on 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 crown to suggest that if a guilty plea is entered, bail will not be opposed prior to sentence.

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.

Understands Admissions
The accused must have suffient information regarding the nature of the charges against him.

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.

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

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

“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.

Miscarriage of Justice
Valid grounds include where there is an appearance of unfairness.

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

Procedure for Appeal
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 an 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.

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:

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