When should I consider pleading guilty?
The decision to plead guilty should only be done after careful consideration. The prosecution is being relieved of its burden to prove guilt beyond a reasonable doubt. The decision to plead guilty should not be arrived at before thoroughly reviewing all disclosure, evaluating the strengths and weaknesses of the Crown case, discussing possible defences with counsel, and having an in-depth and candid discussion about the potential outcomes and risks associated with going to trial versus pleading guilty. Weisberg Law does not take pleading guilty lightly.
It is important to realize that being “guilty” of a criminal offence does not only mean that something may have happened. Guilt is a legal finding. An accused is not guilty in Canada until having been found guilty by a court of law. The presumption of innocence is of paramount importance in Canada.
Sometimes people think of themselves as guilty without knowing that their actions were legally justifiable. Many accused people think of themselves as guilty when in fact they have not committed any actual criminal offence. The accused may have done something unreasonable, distasteful, or ill-advised – but just not criminal.
There will almost always be evidentiary requirements or constitutional issues that accused people will need the guidance of a criminal lawyer to understand. An effective criminal lawyer can capitalize on weaknesses in the prosecution’s case or violations of an accused’s rights to avoid a conviction or finding of guilt. It is essential that an experienced and knowledgeable lawyer thoroughly reviews your case before you consider pleading guilty.
Several requirements must be met if an accused person is going to plead guilty:
- The accused must be guilty of the offence;
- The guilty plea must be voluntary and of the accused’s own free will. The plea cannot be the result of pressure or threats;
- The accused must understand that they will not be able to appeal the finding of guilt made against them, and they will only be allowed to appeal their sentence;
- The accused must understand that regardless of what the defence lawyer has agreed with the Crown, the judge may impose any sentence that he or she sees fit.
When can a guilty plea occur?
An accused person can plead guilty at any point in the criminal process, from very early on until a trial is already underway. At Weisberg Law, our strong preference is to never plead a client guilty until we have at least reviewed the disclosure in detail.
What is a joint position?
A joint position is where a criminal defence lawyer and a Crown Attorney reach an agreement on what sentence they will propose to a judge if the accused pleads guilty. The judge must still approve the sentence proposed, however, judges rarely disagree with joint positions on sentence.
If the criminal defence lawyer and Crown Attorney are unable to reach an agreement on an appropriate sentence, they will each argue in front of a judge for the sentence they think is warranted. The judge, as always, makes the final decision on a sentence.
Discharges – absolute and conditional
A discharge is a finding of guilt, but it is not a conviction. It is a criminal record. A discharge, however, after a prescribed amount of time, will be purged from the accused’s criminal record without the need for a pardon as long as the accused engages in no more criminal behavior during the active time period of the discharge.
When an adult person is found guilty of a criminal offence, the lowest possible sentence a judge can legally impose is an absolute discharge. The person found guilty will have a criminal record for one year, but the record will be purged after that year if there are no more incidents of criminal behaviour.
A conditional discharge is similar to an absolute discharge except that a period of probation with certain conditions will be attached. After three years from the date of sentence, the criminal record will be purged if there are no further instances of criminal behaviour during that period.
A fine will result in a criminal record which will persist until a pardon is applied for and granted at some point in the future.
A suspended sentence typically entails some period of probation involving specific conditions that must be followed. If the conditions of probation are not complied with, further criminal charges can result.
A conditional sentence is considered a jail sentence, but it is served in the community. The terms of a conditional sentence usually involve a period of house arrest followed by a curfew. The accused will usually be allowed to go to work but not allowed to participate in leisure activities or any social events outside of their residence. A conditional sentence is only available for sentences of less than two years. Certain violent offences and offences with minimum sentences cannot result in conditional sentences because of recent changes to the Canadian Criminal Code.
Provincial sentence or penitentiary sentence
If an offender is sentenced to a custodial sentence of imprisonment, the length of sentence will determine at what type of institution the offender serves the sentence. Sentences under two years are served in provincial institutions, while sentences two years or over are served in federal institutions (penitentiaries).