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Guilty pleas
Guilty pleas

What should I do before deciding whether to plead guilty or not?

It is important to understand all of your legal options before making a decision to plead guilty.

You should start by reading your disclosure. If you have difficulty understanding your disclosure, speak to your lawyer or duty counsel.

When you read your disclosure, pay close attention to the synopsis. The synopsis is usually found in the first few pages of the disclosure package. You may agree with some, all, or none of the synopsis. It is very important to tell your lawyer or duty counsel whether you agree with what is written in the synopsis because they will need to know this to give you advice about a possible guilty plea.

Even if you agree with everything that’s in the synopsis, you should still speak to your lawyer or duty counsel before you decide to plead guilty (or not). Your lawyer or duty counsel will be able to give you legal advice about things such as difficulties the Crown could have in proving the case against you, or possible defences you may have. They can also tell you what the Crown is seeking as a sentence and what sentence you are likely to receive if you plead guilty.

What does being guilty of an offence mean?

Being legally guilty of an offence, and the concept of guilt as we know it in everyday life, are not necessarily the same thing. Being legally guilty can be quite complicated and involves principles your lawyer or duty counsel can explain to you.

In order to plead guilty, the physical acts (or omissions) that you agree took place have to amount to a criminal offence. You also had to have a guilty “state of mind” at the time of the offence. In most cases, this means that your actions amounted to a criminal offence and that you meant to do it. Doing something accidently is generally not enough to support a guilty plea for most offences.

For example, you could be found guilty of theft for stealing something in the situation that follows:

A person walks into a store. They pick up an item off the shelf, put it in their pocket to hide it, and walk out of the store past the cashier without making any attempt to pay for it.

In this situation, the person would be able to plead guilty because they physically took the item, and they had the guilty mental state of intentionally leaving the store without paying for it.

What should I bring with me to court if I want to plead guilty?

Always bring your disclosure. If you speak to duty counsel, they can review it with you.

Your lawyer or duty counsel may also ask you to bring some things with you to help with your guilty plea, such as:

What is a plea inquiry?

A plea inquiry is a series of four questions that the judge will likely ask you in court before they allow you to plead guilty. Duty counsel (or your lawyer) may have already asked you these questions in private. The plea inquiry is done so the judge knows you understand what it means to plead guilty; that you are aware of your option to plead not guilty and have a trial; and that you are aware of what can happen to you if plead guilty. The plea inquiry questions are:

The decision to plead guilty is yours, and yours alone. It is not up to your lawyer or anyone else – though your lawyer (or duty counsel) will have given you legal advice to help you make your decision. The judge will want to know that nobody is forcing you to plead guilty. If you have been forced or coerced into pleading guilty, the judge will not accept your guilty plea.

Pleading guilty “just to get your case over with” is not an acceptable reason in criminal court. You must have truthfully done something that amounts to an offence in order to plead guilty. You must also have the proper guilty state of mind at the time of the offence to plead guilty. See “What does being guilty of an offence mean?”

By pleading guilty, you are telling the judge that you understand that you have a right to have a trial where the Crown has to prove the charges against you, and that by pleading guilty, you are giving up that right. Remember, if you plead guilty, unless there are exceptional circumstances, you can’t come back later and say you didn’t mean to plead guilty and that you want to have a trial instead. The judge will also want you to be aware that pleading guilty could mean that you will have a criminal record, or could possibly go to jail.

It is very important to understand what the Crown is asking for as a sentence before you make a decision to plead guilty. You should also be aware of the sentence that your lawyer (or duty counsel) is asking for. In some cases, your lawyer or duty counsel may be asking for the same sentence as the Crown. This is called a joint submission. If your lawyer and the Crown have a joint submission for the judge, the judge does not necessarily have to agree to it.

  1. Are you pleading guilty voluntarily?
  2. Do you understand that by pleading guilty that you are admitting to facts that make up a criminal offence?
  3. Do you understand the consequences of a guilty plea, including that you are giving up your right to have a trial by pleading guilty?
  4. Do you understand that the judge does not have to follow the sentence that your lawyer and/or the Crown are recommending?

What is an arraignment?

An arraignment is the part of the guilty plea process where you tell the court how you plead. The court clerk (or sometimes the judge) will begin the arraignment by reading out the charge (or charges) to which you are pleading guilty. You should always be aware of what charges you are pleading guilty to before you make the decision to plead guilty.

After the charges have been read, the court clerk or the judge will ask you, “How do you plead to the charge(s) as read?” At this point, if you wish to plead guilty, you will say “guilty.” After you have said this, the arraignment is complete and the facts portion of the guilty plea will begin. However, in some cases, after you have entered your plea the case will be adjourned and the facts read out on another day.

What are the “facts” in a guilty plea?

The facts are a very important part of any guilty plea. It is extremely important that you understand the facts and agree with them before you make the decision to plead guilty. Your lawyer or duty counsel will go through the facts with you before you enter a guilty plea. If you don’t agree with the facts, you should not plead guilty.

The facts are usually the events described in the synopsis, and they are read out in court by the Crown. However, the facts in your case may be different from the synopsis if the Crown and your lawyer (or duty counsel) have agreed to a different set of facts for your guilty plea.

What is a finding of guilt?

A “finding of guilt” is a ruling by the judge. It occurs after the facts have been read out, and the accused agrees with the facts that amount to a criminal offence.

After hearing the facts read out, if the judge is satisfied that those facts amount to a criminal offence (or offences), the judge will ask you if you agree with the facts. If you indicate “yes,” the judge will then say “I find you guilty of the offence of ….”

What is sentencing?

Sentencing occurs after the facts have been read out and there’s been a finding of guilt made by the judge. Sentencing may happen right after the finding of guilt, or, if your case is adjourned, it may happen days, weeks or even months later.

What does it mean to plead guilty to a lesser included offence?

Some offences are part of other offences. For example, say you are charged with “assault with a weapon” for hitting someone with an object that you used as a weapon (e.g., throwing a cell phone at someone and hitting them in the head). In that case, the Crown may agree to let you plead to the offence of assault instead. This is because assault is included as part of “assault with a weapon.”

There are many reasons why you may want to plead guilty to a lesser included offence. It is usually because pleading guilty to the lesser offence will have less-severe consequences such as a lower sentence.

If you are pleading guilty to a lesser included offence, your lawyer or duty counsel should help you with the arraignment part of the guilty plea. This is because, after the charge has been read out by the court clerk, you’ll be entering a plea of “not guilty” to the charge(s) as read, but guilty to a lesser included offence.

Why did the Crown read out information about charges that I didn’t plead guilty to?

If you are facing a number of different charges, and you are entering a guilty plea, you will usually plead to some, but not all, of the charges. In most cases, the charges that you did not plead guilty to are withdrawn by the Crown after the guilty plea is finished.

In some cases, the Crown will tell the judge about circumstances that relate to charges that you have not pled guilty to. This often happens because the Crown may ask the judge to consider those facts when sentencing happens.

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