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  • Shankar Law Office

TO PLEA OR NOT TO PLEA WHEN FACING CRIMINAL CHARGES?


If charged with a criminal offence, you will face a decision with consequences that can

reverberate throughout the rest of your life: do you take your matter to trial, or plead guilty?


When should I plead guilty?


As is often the case with legal questions, the answer is “it depends”. More accurately, it depends on the circumstances of your case and the evidence against you. You should plead guilty if you are ready and willing to admit to your offence, and you believe that you are an individual of good character who will receive a favourable pre-sentence report (“PSR”). A guilty plea can reduce the eventual sentence given by a court of law, including avoiding jail time completely in some circumstances. Your lawyer will give you their honest opinion on whether a guilty plea is in your best interest, but the final decision is yours and yours alone.


What are the advantages to pleading guilty?


With all other factors being equal, a judge will typically give a reduced sentence to someone who pleads guilty versus someone who insists they are innocent. This is not meant to “railroad” people into confessing crimes they did not commit. In fact, the judicial system explicitly discourages those who are not guilty from entering a guilty plea, and a judge may not even accept a guilty plea if it is insincere. The reason a guilty plea often results in a reduced sentence is that a guilty plea significantly reduces the burden on the judicial system. It allows the court to devote its time and resources (particularly the time and resources of judges) to more serious matters. Even more importantly, a guilty plea signals to the court that you have accepted responsibility for the criminal offence in question. Sincerely held remorse is considered by judges to be an important step towards rehabilitation of an offender and is a mitigating factor during sentencing. Rehabilitative sentences tend to be shorter. Where an offender is more likely to rehabilitate from their past criminal behaviour (or already has reformed), a lighter sentence (possibly even without jail time) may be possible.


Negotiation of a “Plea Deal”


A resolution agreement, sometimes called a “plea deal”, can be reached with the Crown through careful negotiations with counsel. The Crown will offer a position on sentencing towards the start of your case in exchange for a guilty plea. However, this is unlikely to be their final position. A more favourable position can be negotiated over Crown pre-trial meetings and judicial pre-trial meetings. Most of these meetings take place without a client present, though your lawyer has a duty to inform you when the Crown changes their sentencing position. If the Crown takes a position (either of their own volition or after negotiations) which your lawyer believe is a good outcome for your case, your lawyer may advise you to accept it. It is your choice whether to do so. If you accept, the sentencing position is known as a “joint resolution” or “joint position on sentencing”. In a joint resolution, the Crown and defence will agree on an appropriate sentence and submit it to the sentencing judge. It is extremely rare that a judge refuses to accept a joint position on sentencing. If they do, they must provide reasons for doing so.


When Should I Plead Not Guilty?


Taking the matter to trial is the more immediately difficult path, but it is often the better one. The Crown may simply not have enough evidence in their favour (your lawyer will be able to provide an opinion as to the strength of the Crown’s case against you). The witnesses for the Crown may be unreliable or have conflicts of interest. Generally, if you honestly believe you are innocent, you should plead “not guilty” and proceed to trial. There are several reasons for this:


1. Admitting guilt to a crime you did not commit can lead to serious negative consequences and may lead to future charges if you are found in breach of the probationary conditions put upon you by the sentence. This is because:


A criminal record does not always result from a guilty plea, but usually does, and if you are charged again in the future (especially for a related and/or more serious offence), your record may be held against you during sentencing.


Old charges cannot be relitigated in subsequent cases. Some of our previous clients have found themselves caught up in the court system for years due to accidental breaches of probation orders which they incurred because they pled guilty to a charge they later claimed was fabricated.


2. If you do not accept your guilt, a judge may not either, rendering the plea pointless. Judges will not accept the guilty plea of someone who claims to be innocent during their sentencing hearing, and it is illegal to lie in a court of law.


3. Even if the facts of your case are unfavourable, new facts may come to light. These new facts may lead to some or all of the charges against you being withdrawn.


4. Some of the evidence in your case may be inadmissible due to a violation of your Charter Rights, or the proceedings may go on for longer than is permitted under Charter subsection 11(b).


5. If you cannot afford the increased costs associated with trial, you may be eligible for legal aid, which will foot the cost.


At Shankar Law, we can help you determine the best path forward for your criminal case. We will advocate for you to get the best outcome possible, regardless of your circumstances.


Daniel Wiseman,

(written by an Articling Student, not to be construed as legal advice)





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