Understanding The Guilty Plea Process | Criminal Defence Articles by Tushar K. Pain

Deciding to plead guilty is a difficult decision. Pleading guilty means that you are giving up your right to a trial – you are excusing the Crown from having to prove your guilt beyond a reasonable doubt through the presentation of admissible evidence. It means that you are putting yourself at the mercy of the court to decide your fate.

Having decided to plead guilty, you want to make sure that you understand the process that you are about to go through. Appearing in court for any reason can be a nerve-wracking experience. Appearing in court to plead guilty to a criminal offence can be especially intense. In the haze created by stress and nervous tension, the whole court process might pass by like a quick blur. Before, you know it, you’ve been found guilty and sentenced – but you’re not really sure what happened. This event is far too important to let it whiz by. You will want to know what to expect; you will want to be aware of what is happening; and you will want to have some foreknowledge of the outcome.

Guilty pleas typically take place in a courtroom designated for accepting guilty pleas. That is, unless you are pleading guilty on the day of your trial, in which case your guilty plea will take place in front of the trial judge. There will often be many matters to be dealt with in guilty plea court. There are often many people waiting to be dealt with. You will have to sit and wait until your matter is called.

When you are called, your lawyer will stand up and address the court, introducing himself and you. At this time, you should approach the front of the court and stand behind your lawyer.

Before the process starts, the judge may choose to question you. He or she may wish to confirm that (a) you are entering a guilty plea voluntarily (b) that by entering a guilty plea you are foregoing your right to a trial (c) that it is the trial judge that has the final say regarding the what sentence shall be imposed regardless of any agreement your lawyer and the Crown have come to (d) that you may now change your mind and set a date for a trial instead and (e) the plea will not be “struck” or reversed by the judge if you are unhappy with the sentence.

The first step in the process involves the arraignment – the reading of the charge. The clerk of the court will stand up and read the charge to you. The court clerk will say something like the following:

“Ted Jones, you stand charged that on or about the 3rd day of June in the year 2003, in the City of Toronto, in the Toronto Region, did without reasonable excuse refuse to comply with a demand made to you by John Smith, a peace officer under section 254(2) of the Criminal Code to provide forth with a sample of your breath as in the opinion of John Smith was necessary to enable a proper analysis of your breath to be made by means of an approved screening device. The Crown having elected to proceed summarily, how do you plead?”

At this point you simply reply, “Guilty, Your Honour.”

Following this, you will be asked to have a seat and listen to the facts. Sit either beside or behind your lawyer and listen carefully. The Crown will then “read in” the facts in support of the charge. This means that the Crown will read out the facts to the judge from the police synopsis.

At this point the judge will ask your lawyer if the facts, as read in by the Crown, are substantially correct. At this point, your lawyer will either indicate that the facts are substantially correct as stated by the Crown or your lawyer will indicate what facts are disagreed with and what the defence’s position on the facts are. This of course will be based on your review of the facts with the lawyer before attending court. You should not be hearing the facts for the first time as the Crown is reading them out.

Once the facts have been settled, the judge will make a finding of guilt. At this point, the sentencing phase is commenced.

If you have a previous criminal record that the Crown is aware of, it will present it to the court at this time to be entered as an exhibit on sentencing. Before doing so, a copy of it will be shown to your lawyer for verification. Your lawyer will either confirm and admit the record or indicate that it is inaccurate. Again, this should not be the first time that you are reviewing your criminal record with your lawyer.

Following this, the judge will listen to legal submissions from the Crown and then your lawyer. The Crown will indicate what it is seeking and why it feels the requested sentence is justified. Your lawyer will then tell the judge the details of your background and then point out the mitigating circumstances of the case and why you should receive the sentence that your lawyer is seeking. Your lawyer may also refer to caselaw that supports his position regarding the sentence. The judge may ask either the Crown or your lawyer for clarification or elaboration.

The judge will then ask you if you have anything to say before he or she passes sentence. There is no obligation upon you to say anything. Often times, it is best to say nothing. However, you should discuss this with your lawyer beforehand. If you are going to say anything at all, your lawyer should know what it is you intend to say. You want to ensure that what you plan on saying will not make matters worse for you.

The judge will then pass sentence. In some instances, once sentence is passed, the judge may ask either you or your lawyer whether there are any questions about the sentence. If you have a question or concern, let your lawyer know immediately so he can take it up with the judge, if necessary.

A guilty plea should not be entered into lightly. It should not be entered into on a whim. A guilty plea carries consequences with it. But sometimes it is the right decision. You can help yourself and reduce your own anxiety about pleading guilty by knowing what to expect.