Chapter 8 - False Guilty Pleas

 

I. Introduction

The freedom of an accused person to choose whether to plead guilty or not guilty to a crime is well established in the Canadian common law.Footnote 283 It is a constitutional right. The courts recognize as a principle of fundamental justice the right of accused persons to control the conduct of their defence,Footnote 284 which must be seen to include fundamental decisions about that defence, such as how to plead. However, we now know that factually innocent persons in Canada have sometimes, for a variety of reasons, pleaded guilty to crimes they did not commit. The phenomenon of false guilty pleas has become an issue of growing concern among experts in Canada and elsewhere. For this reason, the Subcommittee has chosen to explore this important subject in a new chapter in this report, to raise awareness and to address two key questions:

  1. How significant is the phenomenon of false guilty pleas in Canada?
  2. What steps, if any, should be taken to reduce the risks of false guilty pleas?

II. Background and Context

The now defunct Law Reform Commission of Canada warned well over a quarter of a century ago that plea bargaining (as resolution discussions were then widely known) could, in extreme cases, persuade accused persons to plead guilty to offences they did not commit,Footnote 285 and it is now undisputed that it has happened in Canada. In short, Canada’s criminal justice system is not preventing false guilty pleas in all cases. It is clear they occur; we simply do not know the scope of the phenomenon.

While pleading guilty to a crime one did not commit can be a rational choice for certain accused in certain situations under Canada’s current justice system, this Subcommittee adopts the premise that, from the perspective of the state, a false guilty plea is never an acceptable outcome in Canada’s criminal justice system,Footnote 286 that it is never in the public interest to convict the innocent. The Subcommittee is also strongly of the view that while accused persons ultimately have the freedom to control the conduct of their defence, all criminal justice participants, including defence counsel, have an ethical obligation to take all reasonable steps within their purview to prevent false guilty pleas.

“The precept that the innocent must not be convicted is basic to our concept of justice…no just society can tolerate the conviction and punishment of the innocent,” Canada’s top court has said.Footnote 287 It behooves governments and other criminal justice system participants to investigate the scope of the problem, why it is happening, and whether all reasonable steps that could be taken to reduce false guilty pleas in criminal cases in Canada are being taken, or whether more can and should be done.

III. The Prevalence of False Guilty Pleas by the Factually Innocent

False guilty pleas are similar to false confessions in that individuals are admitting to crimes they did not commit.Footnote 288 But unlike false confessions, which usually occur during police interrogations, false guilty pleas (like valid guilty pleas), generally follow discussions between an accused and defence counsel, or follow resolution discussions between the Crown and defence counsel. Some experts suggest that the known documented cases of false guilty pleas are increasing, and that the sheer number of guilty pleas entered annually in Canada suggests false guilty pleas are likely more prevalent than we realize, but remain undetected,Footnote 289 and are more difficult to identify and much less studied than false confessions.Footnote 290 Among known exonerees in the United States, some research indicates that those who falsely confess are also more than three times more likely to plead guilty to crimes they did not commit in contrast to exonerees who did not falsely confess.Footnote 291 Growing academic literature also indicates that certain sub-populations, such as young persons, Indigenous persons, and those with cognitive deficits or mental health issues, or who are otherwise marginalized due to factors such as race, poverty or some combination of these factors, may be particularly vulnerable to false confessions and false guilty pleas.Footnote 292

That said, no Canadian studies to date have quantified, through empirical research, the scope of the phenomenon of accused persons in Canada choosing to plead guilty to crimes they did not commit. While Innocence Canada, formerly the Association in Defence of the Wrongly Convicted, has identified five of the 21 exonerations in which it has been directly involved as relating to false guilty pleas,Footnote 293 there is no official comprehensive national “list” of such cases in Canada. Canadian academics who have studied the phenomenon contend “there is good reason to believe they are fairly common,” Footnote 294 and that there are probably many more undocumented cases.Footnote 295

Canadian experts have nevertheless attempted to estimate the prevalence of false guilty pleas in Canada based on what we do know, estimates that flow in part from the application of logic and common sense. More than 450,000 accused persons are dealt with in Canada’s criminal justice system annually, and the vast majority plead guilty, which could mean that hundreds or even thousands of people every year plead guilty to offences they did not commit (even if only one percent of guilty pleas are false), some Canadian academics contend.Footnote 296 In the June 2017 Senate report concerning delays in Canada’s criminal justice system, the Senators referred to testimony indicating that 90 percent of criminal cases do not go to trial and are resolved mainly through plea bargains.Footnote 297 “…[G]iven the recent evidence of innocent people making both irrational and rational decisions to plead guilty, it cannot be assumed that all those in Canada who plead guilty actually are guilty,” leading Canadian experts warn.Footnote 298

In addition, research suggests innocent persons are entering guilty pleas not just for serious crimes, but for less serious matters as well. Historically, the best-known wrongful conviction cases in Canada have generally related to homicide or sexual assault. Less serious offences have not received the same measure of attention or study, thus we have no idea how many false guilty pleas for less serious crimes may have occurred in this country.Footnote 299 Advocates, and indeed the accused themselves, may be less motivated to seek redress for wrongful convictions regarding relatively minor offences that resulted in minor penalties. The rate of false guilty pleas for relatively minor offences could be higher than the rate for more serious crimes, some argue.Footnote 300 An early guilty plea to resolve the matter quickly in a minor case (where the penalty is expected to be relatively light) can be a rational choice for an innocent person to avoid the financial, emotional and related costs incurred in the time-consuming process of contesting the matter,Footnote 301 which can include being denied bail.

In a recent Canadian case, the Manitoba Court of Appeal permitted an Indigenous accused to withdraw his guilty plea, quashed his conviction, and acquitted him after it heard evidence that he could not possibly have committed the crime to which he had pleaded guilty because he was in jail at the time. Richard Joseph Catcheway was arrested in September 2017 for several offences, including being unlawfully in a dwelling house on March 10, 2017. In November 2017, he pleaded guilty to that offence and was sentenced in January 2018 to six months pre-sentence custody, one day court appearance, and 18 months′ probation. The fact that he was in custody at the Brandon Correctional Centre on the date the offence occurred in Winnipeg came to light a few weeks following his sentencing. Although the reasons Mr. Catcheway decided to plead guilty are not entirely clear, his comments to the writer of his pre-sentence report, which are quoted in the joint factum that was filed with the Court of Appeal, reveal that he pleaded guilty at least in part to avoid going to trial:

…he initially stated that he did not remember the night he was charged for Unlawfully in a Dwelling House. He then indicated he is pleading out because he does not wish to go to trial and also because there was a video statement saying he was there at the time of the offence. During the interview, the subject alternated between saying he did not remember and he was not there.Footnote 302

Predictably, there is more American research regarding false guilty pleas, which is true of the phenomenon of wrongful convictions generally. In the United States, research indicates that of the first 250 individuals exonerated through DNA testing, 19 had pleaded guilty to a crime for which they were later exonerated (that is 7.6 percent).Footnote 303 Professor Brandon Garrett suggests these figures may be misleading regarding the overall percentage of false guilty pleas because the 250 cases involved serious offences such as murder where the accused persons would be understandably reluctant to plead guilty due to the penalty. The rate of false guilty pleas in the U.S. may be higher overall when all offences are considered, American experts suggest. “It is one thing to agree to falsely admit to having committed a crime if the crime is relatively trivial and the sentence is a year in prison, but it is another thing entirely if the result is life in prison…”Footnote 304

The National Registry of Exonerations is a joint project of the University of California Irvine Newkirk Centre for Science and Society, the University of Michigan Law School and the Michigan State University College of Law. It provides information on all known exonerations in the U.S. since 1989. (Unlike the exonerations recognized by the New-York based Innocence Project, the National Registry does not restrict itself to recognizing exonerations only where DNA evidence eliminates the accused as the offender).

With that caveat, in its 2018 report, the National Registry reported that it had recorded 2161 exonerations in the United States from 1989 through the end of 2017.Footnote 305 For the year 2017, the Registry reported 139 exonerations, of which 36 were for convictions based on guilty pleas and another 29 involved false confessions. Thus, 25.9 percent of the exonerations identified by the National Registry in 2017 related to guilty plea cases.

The New York based Innocence Project launched a special campaign in 2017 to draw attention to the issue of false guilty pleas. Nearly 11 percent of the 349 exonerations as of that time period involved false guilty pleas.Footnote 306

IV. Why Do Factually Innocent People Plead Guilty to Crimes They Did Not Commit?

As counterintuitive as it may appear, innocent persons sometimes plead guilty to crimes they did not commit, and for a variety of reasons. Chief among these reasons, experts suggest, is that an early guilty plea allows an accused to avoid the uncertainty of a trial outcome, and receive the more lenient sentence that generally accompanies an early guilty plea,Footnote 307 whether factually guilty or not. (An early guilty plea has long been recognized in the common law as a mitigating factor at sentencing).Footnote 308

However, factually innocent persons may plead guilty to crimes they did not commit for other reasons as well, both rational and irrational, including the following factors or combination of factors:

These factors, which can overlap in some cases, are all deserving of greater examination regarding their relationship to false guilty pleas. The state, as represented by the police and the Crown, clearly has no control over many of these factors, beyond being attuned to them during police interrogations and during the Crown review of the file when assessing the prospect of conviction. In fact, a number of these factors arguably relate more to the role of defence counsel in advising their clients. Since the focus of this chapter is on what state actors such as the police and the Crown can do to reduce the risks of false guilty pleas, however, the Subcommittee has chosen to focus on areas in which these players are involved. For example, the Subcommittee has chosen to consider further the relationship between being denied bail and entering a false guilty plea, in part because the Crown has some control over this factor in light of its capacity to provide direction to Crowns through bail policies, which may ultimately be reflected in bail positions in individual cases.

That said, it is important to state clearly at the outset that the Subcommittee is not suggesting that the Crown take a more lenient position on bail than otherwise deemed necessary or appropriate in a given case to reduce the risks of an accused entering a false guilty plea to get out of pre-trial detention. The Subcommittee is strongly of the view that when determining its position on bail, the Crown priority is, and must rightly be, public safety. Crowns of course are also bound to follow the bail policies of their prosecution services as well as the dictates of the common law in this regard. Rather, the goal of this discussion is to identify what the academic literature suggests to date regarding the link between accused who are denied bail and false guilty pleas and to point the way forward regarding further research.

The research is increasingly clear that accused persons who have been denied bail feel greater pressure (versus non-detained accused) to plead guilty to simply get out of custody.Footnote 327 In a July 2014 report on bail, the Canadian Civil Liberties Association (CCLA) observed that accused are being pressured to plead guilty to escape overcrowded dead time.Footnote 328 What is less clear in the Canadian research is the extent to which factually innocent persons are pleading guilty because they have been denied bail and simply want to get released. Canadian academics contend that it is happening but, again, similar to wrongful convictions generally, the scope of the phenomenon is unclear. Some academics argue that it is reasonable to assume that many factually innocent persons plead guilty to avoid the risk of prison (including a potentially longer period) or to avoid conditions in some pre-trial detention centres, and that the increase of accused in detention centres in Canada can only be expected to increase the number of innocent accused who plead guilty to get released, especially if the sentence for the crime is likely to attract a very short jail sentence, if one at all.Footnote 329 (The CCLA reported in its report that the remand rate in Canada has tripled over the last 30 years). Footnote 330

Some Canadian academics argue that it is “commonly accepted” that innocent persons who are denied bail sometimes plead guilty rather than await trial, to get out of custody sooner.Footnote 331 The fact is, as experts point out, an accused can sometimes get released earlier from custody by pleading guilty than by going to trial. In a 1971 Life Magazine article about a New York City lawyer, the defendant was quoted as saying: “You mean if I’m guilty I get out today…But if I’m innocent, I got to stay inɁ”Footnote 332 As one American academic put it: “A guilty plea thus means immediate freedom, whereas fighting to vindicate one’s innocence necessarily means a longer wait for a trial and potential freedom. Even an innocent defendant may find such a deal, and the prospect of immediate release, irresistible.”Footnote 333

In fact, some Canadian experts point out that the incentive for a factually innocent person to enter an early guilty plea may be stronger in minor matters where an accused with a lengthy record believes there is zero chance of getting bail and recognizes that the delay before trial will exceed the sentence that would be imposed for an early plea.Footnote 334

In the United States, the common requirement for accused persons to come up with cash bail has been cited as an incentive for the poor to plead guilty even when innocent since their chances of raising the required cash are low.Footnote 335 In New York City alone, about 45,000 people are jailed each year because they cannot pay the bail.Footnote 336 Journalist Nick Pinto described it as a trap door for those who cannot afford to pay: “The open secret is that in most jurisdictions, bail is the grease that keeps the gears of the overburdened system turning. Faced with the prospect of going to jail for want of bail, many defendants accept plea deals instead….”Footnote 337 Denial of bail in the U.S. has been described as a ‘tool of compulsion,’ “forcing people who would not otherwise plead guilty to do so.”Footnote 338 Poor accused are particularly vulnerable, Pinto contends: “Bail makes poor people who would otherwise win their cases plead guilty.”Footnote 339

In Canada, conversely, a 2017 unanimous decision of the Supreme Court of Canada, R v Antic, has stated clearly that cash bail should be relied upon only in exceptional circumstances. Even then, when exceptional circumstances are found to exist and cash bail is ordered, the amount must not be so high that it is beyond the readily available means of accused persons and their sureties.Footnote 340

Nevertheless, Canadian scholars have advocated reform of the bail system in Canada so that bail is granted more frequently and with fewer conditions to reduce the number of innocent people who plead guilty to get out of custody. They argue that certain groups, such as Indigenous accused, are overrepresented among those who falsely plead guilty.Footnote 341 The only way to reduce the incentive for factually innocent persons to plead guilty to get out of detention is to grant accused persons bail once they have served the same amount of time in custody as they would serve upon an early guilty plea, some experts suggest. Footnote 342

It is important to note that on March 29, 2018, the federal government introduced Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts,Footnote 343 which includes major reforms to the criminal justice system, including significant reforms to the interim release and bail system. The proposed changes include a requirement that peace officers, justices and judges give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances.Footnote 344 The proposed amendments also require peace officers, justices and judges, when considering whether to release an accused at the pre-trial stage, to give particular attention to the circumstances of Indigenous accused and accused who belong to vulnerable populations that are overrepresented in the criminal justice system and that are disadvantaged in obtaining pre-trial release.Footnote 345

The relationship between being denied bail and guilty pleas by the factually innocent deserves greater attention, given the remand rate in Canada. Even the Supreme Court of Canada has observed that an accused must not feel forced to plead guilty to be released from custody. In R v Antic, Justice Wagner, writing for the Court, stated: “An accused is presumed innocent and must not find it necessary to plead guilty solely to secure his or her release….”Footnote 346

V. Avenues for Further Exploration Regarding the Reduction of False Guilty Pleas

Reforms aimed at reducing the risk of false guilty pleas in Canada can be complicated and fraught with challenges, because at least some possible changes may require the re-consideration of longstanding legal principles and entrenched practices. That said, governments and key criminal justice actors, such as police, prosecutors, defence lawyers and judges, as well as professional associations, law societies and other relevant organizations in Canada, share an obligation to consider any and all possible reforms that could reduce the risk of false guilty pleas in Canada. The following discussion focuses on areas of potential reform identified by experts in the field that merit further examination.

1. Resolution Discussions and an Early Guilty Plea as a Mitigating Factor at Sentencing

a) Resolution Discussions

As previously mentioned, the vast majority of criminal cases in Canada do not go to trial but rather are resolved by guilty pleas, often as a result of resolution discussions between defence counsel and the Crown.Footnote 347 While the scope of resolution discussions can be wide,Footnote 348 such negotiations often involve accused persons pleading guilty to the charges laid or to lesser offences in return for the Crown agreeing to seek a more lenient sentence than the one the accused could expect to receive should they be convicted following a trial. Under the Canadian common law, an early guilty plea has long been recognized as a mitigating factor at sentence and thus the Crown agreeing to seek a lesser sentence in exchange for an early guilty plea is invariably an aspect of resolution discussions.

The focus of this section thus concerns resolution discussions aimed at resolving matters through guilty pleas, and what, if anything, the state and its key actors can do to reduce the risks of false guilty pleas being entered following such discussions.Footnote 349 The point should be made at the outset, however, that both plea resolution discussions and the practice of the Crown agreeing to seek a reduced sentence for an early guilty plea are entirely proper, ethical and lawful practices within the Canadian criminal justice system. That said, they are being examined here in the interests of conducting a thorough consideration of any and all practices involving key criminal justice system participants, such as defence lawyers and Crown counsel, which have sometimes resulted in false guilty pleas.

The longstanding practice in Canada of “plea bargaining,”Footnote 350 often referred to today as plea negotiations or plea resolution discussions, was once the subject of considerable controversyFootnote 351 but is now considered an integral aspect of Canada’s criminal justice system.Footnote 352 The Supreme Court of Canada, in a 2016 ruling, agreed with the 1993 Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure and Resolution Discussions, that the practice is a “proper and necessary part of the administration of criminal justice.”Footnote 353 Resolution discussions between the Crown and the defence are “not only commonplace in the criminal justice system, they are essential. Properly conducted, they permit the system to function smoothly and efficiently,”Footnote 354 Canada’s top court said in R. v Anthony-Cook.

The prospect of a joint submission that carries with it a high degree of certainty encourages accused persons to enter a plea of guilty. And guilty pleas save the justice system precious time, resources, and expenses, which can be channeled into other matters. This is no small benefit. To the extent that they avoid trials, joint submissions on sentence permit our justice system to function more efficiently. Indeed, I would argue that they permit it to function. Without them, our justice system would be brought to its knees, and eventually collapse under its own weight.Footnote 355

In fact the Supreme Court of Canada has long recognized plea discussions as a core element of prosecutorial discretion.Footnote 356

The history is similar in the United States. Plea bargaining became common there in the mid-1800s. Although controversial, the practice received judicial approval from the United States Supreme Court in 1971, when it was characterized as an “essential component of the administration of justice.”Footnote 357 It is a well-established and acknowledged practice today. The U.S. Supreme Court acknowledged in 2012 that plea bargaining plays a central role in securing convictions and determining sentences, and that the criminal justice system is “for the most part a system of pleas, not a system of trials.”Footnote 358

Despite the central and lawful place of resolution discussions within Canada’s criminal justice system, a key weakness of these routine discussions, from the vantage point of advocates concerned about the factually innocent, is that they occur in private between the Crown and the defence, are generally privileged,Footnote 359 and are not subject to public scrutiny or oversight to the same degree as proceedings in open court. In other words, resolution discussions lack the protections built into the adversarial system, including the concept of the open court as a hallowed principle, i.e., agreements reached during resolution discussions are not wholly visible or transparent.Footnote 360 The accused can arguably be subject to unrecognized pressures and coercion to plead guilty flowing from these discussions, some argue. When defence counsel, Crowns and judges perform their duties in public, their compliance with ethical and legal obligations can be scrutinized. Such outside scrutiny and oversight is absent when discussions occur in private.Footnote 361

The Martin Report noted that the practice, while still controversial, had gained widespread support by the time that Committee reported in the 1990s,Footnote 362 and recognized such discussions as an essential part of the criminal justice system in Ontario.Footnote 363 The Martin Report nevertheless acknowledged the longstanding and persistent disapproval of the practice by some for its private nature, and its lack of procedural protections (as contrasted with trials presided over by an impartial judge), and thus the greater risks that coerced pleas and unethical conduct could go undetected.Footnote 364 The Martin Report also noted that some have contended that the nature of plea negotiations can result in the merits of the case taking a back seat to the skills of the negotiating parties.Footnote 365 It further observed that resolution discussions create a much more limited record for later scrutiny than a case that proceeds to trial.Footnote 366

That said, as discussed in subsequent sections of this chapter, Crown counsel across Canada are today guided by policies that establish the proper and ethical parameters of any such resolution discussions, and both Crown and defence counsel must also adhere to the professional rules of conduct established by law societies.

Nevertheless, some contemporary Canadian and American experts continue to argue that the practice deserves more careful scrutiny.Footnote 367 In fact, the late Justice Marc Rosenberg of the Ontario Court of Appeal stated publicly in 2011 that plea bargaining had become coercive, that it tempted an intolerable number of innocent persons to plead guilty, and that it required a thorough review. There is no evidence the system would collapse if plea bargaining were abolished, he stated. The U.S. city of New Orleans had abolished plea bargaining several years earlier, and the system had not ground to a halt, he was quoted as saying. Accused persons continued to plead guilty and there was no sharp increase in trials, he observed.Footnote 368

Some suggest the judiciary should play a more active role: the pre-hearing judge should question the Crown and defence about the facts of the case, if a plea bargain is offered. The sentencing judge could specifically ask accused persons whether they admit committing the crime, whether any promises have been made and, if so, whether such promises have affected the decision to plead guilty. The answers to these questions could inspire the judge to question counsel in greater detail regarding the facts supporting the guilty plea and the judge could ultimately refuse to accept the plea due to concerns about its validity.Footnote 369 (Under the common law, a trial judge is expected to reject a joint submission on sentence only if it is so “markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a breakdown in the proper functioning of the criminal justice system.”)Footnote 370 At the time of writing in April 2018, the federal government had introduced amendments to s. 606 of the Criminal Code, aimed at requiring more of judges who accept guilty pleas. This amendment is discussed below in the section concerning s. 606.

b) An Early Guilty Plea as a Mitigating Factor at Sentencing

According to some experts, pleading guilty to secure a more lenient sentence is the chief reason innocent persons sometimes choose to plead guilty. As previously stated, a guilty plea, particularly one entered early in the court process, has been recognized in Canada for decades under the common law as a mitigating factor at sentencing.Footnote 371 The earlier in the process the plea is entered, the more mitigating it is perceived to be.Footnote 372 Among other things, pleading guilty early in the criminal process can imply remorse,Footnote 373 and also spares victims and witnesses the stress and anxiety of waiting to testify, and the added stress that often comes with having to testify twice (at a preliminary hearing and a second time at trial.)Footnote 374 It is also sometimes interpreted as the offender taking responsibility early in the process, which has been recognized as the first step in rehabilitation, and it can be perceived as saving valuable resources as well as sparing expense and inconvenience for witnesses and the community at large.Footnote 375 In fact, the Martin Report recommended that the Ontario Attorney General emphasize to prosecutors that when the guilty plea is offered at the first reasonable opportunity it is “particularly mitigating.”Footnote 376

However, the risk of this longstanding sentencing practice, although entirely justified in law, is that it can be (and has been) an incentive to an accused person to plead guilty, even if they have not committed the crimes. If it appears that a conviction following trial is likely, and that an accused will receive a significantly stiffer sentence following trial if convicted, pleading guilty early in the process can be a rational choice for a factually innocent accused. The case of Anthony Hanemaayer Footnote 377 is a classic example in Canada.

Hanemaayer had always maintained that he had not committed the break and enter and assault with which he was charged, but he had no alibi witness to support his story that he was home at the time. After hearing the eyewitness evidence during the trial, whom Hanemaayer perceived as a convincing witness, and after consulting with his lawyer, he changed his plea to guilty. He indicated that he had understood from his lawyer that it was almost certain he would be convicted and could expect a penitentiary term of six years or more. He understood that if he pleaded guilty, he would receive a sentence of less than two years. Hanemaayer spent 16 months in jail for a crime he did not commit;Footnote 378 his conviction was eventually overturned by the Ontario Court of Appeal. Justice Rosenberg, in the unanimous court ruling, described the case as “an important cautionary tale for the administration of criminal justice.” Justice Rosenberg wrote:

…[t]he court cannot ignore the terrible dilemma facing the appellant. He had spent eight months in jail awaiting trial and was facing the prospect of a further six years in the penitentiary if he was convicted. The estimate of six years was not unrealistic given the seriousness of the offence. The justice system held out to the appellant a powerful inducement that by pleading guilty he would not receive a penitentiary sentence. Footnote 379

Upon further investigation, the police concluded that Paul Bernardo had committed the crime.

Abolishing, or at least limiting, the sentence discount for an early guilty plea would arguably eliminate or reduce the key incentive of the factually innocent to plead guilty to crimes they did not commit. There are strong arguments for and against moving in this direction, which can be summarized as follows: On the one hand, some scholarsFootnote 380 (and presumably some defence lawyers) believe that innocent persons should be free to plead guilty in exchange for lesser sentences if conviction after trial appears likely despite their factual innocence,Footnote 381 given the law as it is. Why should factually innocent persons languish in jail for months awaiting trial, even years, when they could be out much sooner if they plead guilty and receive a shorter sentence, some scholars ask. Innocent accused should not be denied benefits available to accused persons who are factually guilty, they contend.Footnote 382 In addition, defence counsel are duty bound to act in their clients’ best interests, which includes advising accused persons of the strength of the Crown’s case, Footnote 383 as well as offers from the Crown before trial and the likelihood of conviction and sentence following trial.Footnote 384 This can result, and has resulted, in accused persons who are factually innocent making rational decisions to plead guilty. In addition, some maintain, as the Supreme Court did recently in R v Anthony-Cook, that Canada’s criminal justice system could not function if plea negotiations (which have at their core the offering of a reduced sentence for an early guilty plea) did not occur. Footnote 385

Conversely, others argue that while false guilty pleas may be a rational choice in certain situations from the perspective of the accused, a false guilty plea is never an acceptable resolution in Canada’s criminal justice system. It undermines the integrity of our criminal justice system, and steps must be taken to reduce or eliminate false guilty pleas.Footnote 386 Indeed, the Ontario Court of Appeal has referred to “the well-established principle that it can never be in a defendant’s interest to be wrongly convicted.”Footnote 387 Nor can criminal justice system participants, including the police and the Crown, knowingly permit, or turn a blind eye to, factually innocent people pleading guilty to crimes they did not commit. Acknowledging it as self-evident, the Martin Report recommended that the Crown should not accept a plea of guilty knowing that the accused is innocent.Footnote 388 While it is questionable just how often, if ever, the Crown will have actual knowledge that the accused is factually innocent, the Martin Report stated that accepting a guilty plea from an innocent person “contravenes counsel’s professional status as officer of the Court, and violates the duty of uncompromising integrity: it resembles an attempt to perpetrate a fraud upon the Court.”Footnote 389

While it has been a longstanding practice in this country to treat an early guilty plea as a mitigating factor at sentencing, this principle has never been codified in the Criminal Code. However, in a June 2017 Senate committee report on delays in the criminal justice system, the Senators recommended that the Minister of Justice introduce legislation to amend the Criminal Code to add a principle to s. 718.2 to that effect. Nevertheless, the committee clarified that: “[E]arly guilty pleas are only appropriate when they reflect the true sentiment of the accused person; encouraging them should never force an accused person to compromise their belief that they are innocent.”Footnote 390 Currently, s. 718.2 refers to mitigating circumstances but does not list any examples. Adding an early guilty plea as a mitigating factor could result in an over-emphasis of this factor in sentencing, if no other factors are listed. This Subcommittee takes no position on whether the federal government should include this mitigating factor in the Criminal Code or seek to develop a more complete list of mitigating factors for inclusion in the Criminal Code; we suggest only that the matter deserves careful and thorough examination prior to any movement in that legislative direction. Regardless of whether the federal government ultimately chooses to codify the principle that an early guilty plea is a mitigating factor at sentencing, alone or as part of a list of mitigating factors, it may be worth considering whether to include in the Criminal Code a basic principle that criminal justice system participants must be attuned to the risk of false guilty pleas and aware that certain segments of the population may be particularly vulnerable to entering false guilty pleas.

The documented fact that an agreement by the Crown to seek a more lenient sentence in return for an early guilty plea can prompt factually innocent persons to plead guilty to crimes they have not committed raises fundamental questions that strike at the heart of this issue: Should the state consider abolishing,Footnote 391 or at least limiting to some degree the size of the sentence discount that the Crown can offer an accused in exchange for an early guilty plea as the United Kingdom has done?Footnote 392 Should governments at least consider researching what we know empirically about the relationship between the longstanding practice of offering more lenient sentences in exchange for early guilty pleas and false guilty pleas? Should the federal government or another appropriate research body in Canada examine the approach and experience of countries such as Britain, which has chosen to limit the size of the sentence discount that can be offered in exchange for an early guilty plea, or that of various American states who have either abolished or limited the size of the sentence discount that can be offered?

It must be emphasized that it remains entirely proper, lawful and ethical in Canada for the Crown to enter into plea resolution discussions, provided Crown counsel adhere to resolution discussion policies, and provided that both defence and Crown counsel respect and honor the rules of professional conduct by which they are bound. This section has nevertheless raised important questions that are worthy of deeper examination, given that the agreement by the Crown to seek a reduced sentence in exchange for an early guilty plea is so often at the core of resolution discussions. These issues require much more discussion and consideration than is possible in this chapter. The Subcommittee merely raises this question in the spirit of a comprehensive examination of this important topic.Footnote 393

In closing, it is sufficient to state that so long as an early guilty plea remains a mitigating factor that can result in a more lenient sentence (and in some cases, in a significantly more lenient sentence) than the sentence that would be imposed had the accused been convicted after trial, some accused persons who are factually innocent could continue to plead guilty to crimes they did not commit, unless other safeguards can prevent such false guilty pleas.

2. Crown Policies Across Canada

The Crown, as a state actor, is obliged to do everything in its mandate to ensure that state sanctions, including loss of liberty, are imposed only on persons who have committed the crimes for which they are charged. The development and evolution of Crown policies in Canada over the decades regarding resolution discussions is one means of attempting to ensure this. The Canadian Sentencing Commission recommended in 1987 that the appropriate federal and provincial prosecutorial authorities develop and seek to enforce guidelines regarding the ethics of plea bargaining.Footnote 394 Two years later, the Law Reform Commission of Canada made a host of recommendations aimed at promoting ethical plea discussions.Footnote 395 And the Martin Report’s final recommendation in 1993 was that the Ontario Attorney General issue public guidelines to implement the Committee’s many recommendations regarding resolution discussions.Footnote 396 The Martin Committee was clearly alive to the issue of wrongful convictions and the need to guard against them. “Under no circumstances” is it in the public interest to seek a conviction where it is known that the accused is innocent, the Martin Report stated.Footnote 397 “[T]here is no greater disservice to the public interest in the administration of justice than the wilful conviction of an innocent accused.”Footnote 398

Today, a quarter of a century later, all Canadian prosecution services have guidelines for prosecutors regarding resolution discussions, which govern the conduct of federal and provincial prosecutors across Canada and are generally available to the public online. Guidelines on resolution discussions have been in existence for many decades in some cases.Footnote 399

The Crown obligation to not accept a guilty plea where the prosecutor has knowledge or concerns that the accused is factually innocent is addressed directly in the policies of most prosecution services in Canada. However, the language used differs; some guidelines are more clear and directive than others. For example, Saskatchewan’s policy states that Crown counsel must not accept a guilty plea to a charge knowing that the accused is innocent. In its chapter on Resolution Discussions, the Public Prosecution Service of Canada Deskbook, which applies to all federal prosecutions, and thus includes all Criminal Code and Controlled Drugs and Substances Act (CDSA) prosecutions in the three territories, as well as CDSA and certain Criminal Code matters in the provinces, states that: “It is important to emphasize that Crown counsel cannot proceed with a resolution agreement where the Crown has knowledge or concerns based on the evidence that suggest the accused may be factually innocent.”Footnote 400 Prosecution guidelines for Nova Scotia, Alberta and Prince Edward Island regarding resolution discussions use slightly different language but all prohibit Crown counsel from accepting pleas where the accused continues to assert innocence. The British Columbia and New Brunswick policies require that the accused be prepared to accept legal and factual guilt before the Crown can accept a guilty plea. Newfoundland and Labrador requires that the accused is willing to acknowledge guilt unequivocally and that the accused’s guilty plea is voluntary and informed. The Manitoba policy refers to the Crown’s duty to be guided by the public interest, the Crown’s overarching duty of fairness, its duty not to mislead the court, and the fact that facts provided to the Court on a guilty plea must be facts either accepted by defence counsel or that the Crown can prove beyond a reasonable doubt if disputed. The Quebec policy refers to the fact that the Crown cannot accept a guilty plea to a charge that is not supported by the evidence.Footnote 401 Ontario’s new Crown Prosecution Manual, which took effect in November 2017, focuses on the fact that the Crown should continue with the prosecution of a charge only where there is a reasonable prospect of conviction, a standard that Crowns are directed to apply in all cases and at all stages.

Crown policies also require the Crown to ensure that the decision to prosecute test has been met regarding the offence, although again, the wording of these policies varies among prosecution services. For example, the federal Crown can proceed with a charge only if there is a reasonable prospect of conviction based on evidence that is likely to be available at trial regarding the offence. If that standard is met, the prosecution must also best serve the public interest.Footnote 402

The Crown policies on resolution discussions and the prosecution tests for each jurisdiction cannot be examined in detail in this chapter. However the Subcommittee is of the view that all Crown policies that provide guidance and direction to Crowns in areas that could bear on the prevention of false guilty pleas should be carefully reviewed to ensure that all necessary direction is being provided to Crowns in prosecution policies and related directives to reduce the risks of Crown counsel accepting false guilty pleas following resolution discussions.

3. Rules of Professional Conduct

The known cases of factually innocent persons in Canada pleading guilty to secure more lenient sentences has prompted some to question the ethics and propriety of defence lawyers entering guilty pleas on behalf of clients who maintain their innocence.Footnote 403 Various legal entities, such as the Law Reform Commission of Canada in its 1989 report,Footnote 404 the Martin CommitteeFootnote 405 and perhaps more indirectly, law societies and similar bodiesFootnote 406 across the country, have been suggesting for decades that Crown prosecutors and defence counsel should avoid assisting in plea agreements that involve an accused pleading guilty to an offence while maintaining innocence or where defence or Crown have knowledge or evidence that the accused is factually innocent. However, even if clients maintains factual innocence in private conversations with defence counsel, if accused persons want to plead guilty, ultimately, they can find a way to do so, in accordance with the current law and wording of the professional rules of Canada’s law societies. In order to respect the rules of professional conduct, which require, among other things, that counsel cannot mislead the court,Footnote 407 in practice, defence counsel deal with this in various ways. Sometimes defense counsel withdraw from the case and the client who wishes to plead guilty goes to another lawyer. Sometimes defence counsel advise the court that counsel will not assist with the plea but will still make sentencing submissions.Footnote 408

Leading Canadian authorities on legal ethics acknowledge that the rules of professional conduct in Canada are simply unclear regarding whether counsel can represent a client on a guilty plea if that client continues to maintain innocence.Footnote 409 In fact, some academics suggest it is time for Canada’s legal profession and the courts to address this issue head on and develop a specific ethical and legal rule of conduct in this regard.Footnote 410

The Federation of Law Societies of Canada, the national coordinating body of Canada’s 14 provincial and territorial law societies that regulate lawyers and related legal professionals, has approved a Model Code of Professional Conduct.Footnote 411 While each of Canada’s law societies has its own code of conduct for lawyers, the Federation’s Model Code has been implemented in whole or in part by almost all law societies.Footnote 412 The Model Code is a useful guide because it establishes uniform national guidelines for lawyers. However its guidelines may not yet be adequately robust and detailed to address concerns about preventing false guilty pleas. For example, the Federation′s current model rule regarding Agreement on Guilty Plea may not provide sufficient safeguards against false guilty pleas. Rules 5.1-8 (c) and (d) state that a lawyer for an accused or potential accused may enter into an agreement with the prosecutor about a guilty plea, if, following investigation, (c) “the client voluntarily is prepared to admit the necessary factual and mental elements of the offence charged;” and (d) “the client voluntarily instructs the lawyer to enter into an agreement as to a guilty plea.”Footnote 413 This statement requires only that the accused is prepared to admit the essential elements of the crime. Similar wording is found in other rules of professional conduct of other law societies across the country.Footnote 414 Experts in legal ethics argue that this wording can be interpreted in various ways: On the one hand, it could mean that defence counsel cannot represent an accused on a guilty plea if the accused continues to assert innocence in private. However, this wording applies only to plea agreements, which suggests defence counsel can proceed with guilty pleas of clients who maintain innocence provided this is not done as part of agreements, some argue. In addition, experts say, the phrase “prepared to admit” can be interpreted to mean that the accused must be willing to make a public admission of guilt during the plea and sentencing proceedings but not necessarily during private discussions with defence counsel.Footnote 415

The rules in Chapter 5 of the Model Code go only so far as to say that defence counsel must represent the client resolutely and honorably and treat the court with candour and fairness.Footnote 416 However the commentary in Footnote 29 under rule 5.1-1 makes the point that admissions by the accused to a lawyer may impose strict limitations on the conduct of the defence and the accused should be apprised of this. Nor can defence counsel pursuant to rule 5.1-2 (b) knowingly assist or permit a client to do anything that the lawyer considers to be dishonest or dishonourable or (e) knowingly attempt to deceive the tribunal or influence the course of justice by offering false evidence. Likewise, under rule 5.1-3, the prosecutor must act for the public and the administration of justice “resolutely and honorably” while treating the tribunal with candour and fairness.

But these are general rules that are vague and open to interpretation. The model rules do not expressly and specifically state that guilty pleas can be accepted from accused persons only if the evidence demonstrates that they committed the offences and if they admit committing the offence. Nor do the rules clearly and directly address the professional duties of defence counsel in situations where clients want to plead guilty while continuing to profess their factual innocence to the lawyer, nor make the point that a prosecutor cannot accept a guilty plea from an accused known to be innocent, or that, as a fundamental principle, it is never in the public interest to accept a guilty plea or agree to a sanction for an individual who has not committed the criminal offence. The law societies should consider whether the rules of professional conduct in Canada should address this matter more clearly and directly.

What is clear in the Model Code, and in the rules of law societies across the country, as well as in the rulings from the Supreme Court of Canada, is that a lawyer cannot knowingly attempt to deceive or mislead the court.Footnote 417 While the meaning of the phrase “mislead the court” may also be the subject of debate, its practical and logical meaning would arguably preclude a lawyer from representing in court that the client is guilty when counsel knows that the client is innocent.Footnote 418 But how often, if ever, will counsel know with 100 percent certainty that the client is factually innocent? As Layton and Proulx posit in Ethics and Criminal Law, is a lawyer misleading the court if the lawyer does not believe the client’s private insistence on his innocence or is simply uncertain of the veracity of the claim of innocence?Footnote 419

In the final analysis, what can defence and Crown counsel do when an accused insists he is guilty and wishes to plead so, despite their doubts, if the facts support the essential elements of the offence and the prosecution standard has been met? To what extent can, or should, the defence and Crown play the role of gatekeeper in these circumstances? Should the judge’s role at the time of plea be expanded? How far can, or should, key criminal justice system participants go in seeking to confirm the veracity of the guilty plea? What are the boundaries of professional responsibility in this regard? What further steps, if any, should professional bodies practically take to regulate professional conduct in this regard? These are valid, important and practical questions worthy of further consideration.

4. Judicial Training

As discussed in Chapter 7, the National Judicial Institute offers courses for federally-appointed judges across Canada, including a specific course on wrongful convictions. When it was offered in 2017, a part of the course included the topic of false guilty pleas.

5. The Judiciary and Section 606 of the Criminal Code

Pleas

SECTION 606

Pleas permitted

606. (1) An accused who is called on to plead may plead guilty or not guilty, or the special pleas authorized by this Part and no others.

Conditions for accepting guilty plea

(1.1) A court may accept a plea of guilty only if it is satisfied that the accused

  1. is making the plea voluntarily; and
  2. understands
    1. that the plea is an admission of the essential elements of the offence,
    2. the nature and consequences of the plea, and
    3. that the court is not bound by any agreement made between the accused and the prosecutor.

Validity of plea

(1.2) The failure of the court to fully inquire whether the conditions set out in subsection (1.1) are met does not affect the validity of the plea.

Refusal to plead

(2) Where an accused refuses to plead or does not answer directly, the court shall order the clerk of the court to enter a plea of not guilty.


Subsections 606 (1.1) and (1.2) are relatively new sections in the Criminal Code. They were introduced in 2002, and reflect the proposed wording and recommendations of the 1993 Martin Report. The Report had noted that since it was acceptable in the U.S. to plead guilty while maintaining one’s innocence, a plea comprehension inquiry was desirable in Ontario since a guilty plea cannot proceed if the accused denies guilt.Footnote 420 The Martin Report recommended that the Attorney General of Ontario seek an amendment to the Criminal Code requiring a sentencing judge to question the accused in every case where a guilty plea is to be entered, regarding the voluntariness of the plea, as well as the accused’s understanding of the nature and consequences of a guilty plea. Given the potential implications for an accused, the Martin Report explained that it was recommending that the trial judge conduct the inquiry in open court.Footnote 421

Under the Canadian common law, courts have interpreted ss. 606 (1.1) to mean that, in order for a guilty plea to be valid, it must be voluntary, unequivocal and informed.Footnote 422

Yet some scholars suggest that the current wording of s. 606 of the Criminal Code is not adequately demanding or robust, that it does not demand enough of the accused or the judge to ensure that the accused is factually guilty. No special rules adequately limit the ability of judges to accept pleas in these circumstances or require them to conduct more in-depth inquiries of the factual bases underlying the pleas, scholars say. “Ineffective assistance of counsel combined with judicial passivity in accepting guilty pleas dramatically increases the risk of wrongful convictions,” some scholars contend.Footnote 423

In practice, presumably judges can continue to assume that accused persons are receiving effective assistance of counsel in the sense that the accused is being properly advised of the availability of any and all available defences, including the inability of the Crown to prove the required mental element when this is the opinion of defence counsel. That said, the current wording of s. 606 requires only that the judge inquire, among other things, whether the accused is prepared to admit the essential elements of the offence. It does not require the judge to inquire whether the accused actually committed the offence.Footnote 424 Nor does a judge’s failure to fully inquire as to whether the conditions in ss. 606(1.1) have been met invalidate the guilty plea, which some academics argue undermines the obligation of a judge to conduct a full inquiry.Footnote 425 In short, the statute requires only that an accused voluntarily choose to plead guilty, and that the accused understands that the guilty plea is an admission of the essential elements of the offence and appreciates the nature and consequences of the plea. As some academics have noted, s. 606 does not directly address the issue of the factual accuracy of the plea.Footnote 426 “Innocent accused can freely choose to plead guilty, fully understanding that they are admitting to the elements of the offence, even if they are lying or do not understand what those elements are.”Footnote 427 In other words, the section does not require that the accused expressly and voluntarily admit committing the act and also admit having had the required mens rea, nor does it require the judge to ask accused persons directly if they committed the crime. In essence, as one academic puts it, s. 606 currently permits the trial judge to “dodge” the question of whether the accused actually committed the offence.Footnote 428

To address these concerns regarding the essential elements of the offence, the Crown, in reading in the agreed statement of facts on which the guilty plea is based, should take care to refer to the facts and evidence in support of each essential element of the offence, including the evidence supporting the requisite mental element of the offence, regardless of how serious or minor the crime.

A key problem with s. 606, academics argue, is that it enables both the accused and the judge to remain “extraordinarily passive” and creates few barriers for accused persons who wish to plead guilty to crimes they not commit.Footnote 429 For example, some Canadian experts contend the accused should have to personally enter the guilty plea in all cases and confirm the accuracy of the facts supporting the charge. Currently, an accused does not have to personally enter the guilty plea or personally acknowledge as true the facts alleged by the Crown in support of the charge; defence counsel can make these admissions on behalf of the accused. If the accused had to take these steps personally and publicly in open court, some academics contend that innocent persons might find this more difficult to do as it requires an overt act of lying.Footnote 430 It should also be legally mandatory for the judge to hear the facts in support of the chargeFootnote 431 and to question the accused to ensure the accuracy of the facts,Footnote 432 which could also make it more challenging for the innocent accused to enter a false guilty plea. Some advocate that the judge should be required to conduct a brief factual inquiry of the accused to hear the accused explain directly what they did and why. The judge should not accept the plea unless satisfied that the accused is honestly and accurately admitting to all of the elements of the offence.Footnote 433 While these practices may already occur in many cases, requiring them by law would arguably assist in reducing false guilty pleas.

In summary, Professor Christopher Sherrin suggested some years ago that the law should be amended in three ways to address the infirmities in s. 606 of the Criminal Code:

Bill C-75, which was introduced on March 29, 2018 and referred to earlier,Footnote 435 contains a key change to s. 606 that is designed to address to at least some degree concerns that have been identified. The amendment proposes changes to ss. 606 (1.1) of the Criminal Code so that it would require that a court can accept a guilty plea only if it is satisfied that the facts support the charge. Obviously this amendment, should it become law, would require the judge to specifically consider in each case the elements of the charge and the facts supporting each element.

In its Charter statement accompanying the introduction of Bill C-75, the government explained its rationale for this amendment:

Clause 270 would amend the plea provisions of the Criminal Code to require the court to be satisfied that the facts support the charge, as a condition for accepting a guilty plea. This requirement is already contained in section 36 the Youth Criminal Justice Act (YCJA) as a recognition of the vulnerability of youth. The amendment is in recognition that many adults in the criminal justice system are also vulnerable and it would provide an additional safeguard against an innocent accused pleading guilty due to being denied bail and/or trying to avoid a lengthy wait for trial, while promoting respect for the rights to liberty and to a fair trial as protected by sections 7 and 11(d) of the Charter.

Under ss. 36 (2) of the YCJA, if a young person pleads guilty but the court is not satisfied that the facts support the charge, it must proceed with the trial and shall, after considering the matter, find the young person guilty or not guilty or dismiss the charge, as the case may be.Footnote 436 As noted by the Saskatchewan Court of Appeal in R v TL, s. 36 is intended to ensure that young persons are found guilty only of offences flowing from their actual conduct.Footnote 437 Likewise, ss. 32 (4) of the YCJA requires that if the court is not satisfied that the young person understands the charge, the judge must enter a plea of not guilty and proceed with the trial in accordance with s. 36. (Additional and related protections under s. 32 of the YCJA apply to unrepresented young persons.)

Finally, in adult court, plea comprehension forms are now being used in at least some jurisdictions, to some degree, where accused persons (presumably with the assistance of defence counsel) must review and answer direct questions relating to whether they committed the offence, and sign the form, to provide greater assurance that the accused persons committed the offence and fully understand the implications of pleading guilty. These forms probe the fundamental issue of factual guilt to varying degrees and may vary in value and effectiveness in identifying factually innocent persons. Examples of these forms are attached as Appendices A and B.

6. Other Forms of Plea

Another question that is arising in the public discourse in Canada, as well as in the jurisprudence, is whether other plea options should be permitted in Canada to reduce false guilty pleas.Footnote 438 While this idea was raised in the June 2017 Senate report as one avenue for reducing delays in the criminal justice system,Footnote 439 it could provide a solution for at least some accused persons who wish to resolve their matters without pleading guilty to crimes they did not commit, and may be worthy of further study and consideration, at least regarding minor offences. Currently in Canada, accused persons have two basic legal options: they can plead guilty or not guiltyFootnote 440 whereas in at least some American jurisdictions an accused person can also enter what is known as an Alford plea, or plead no contest (nolo contendere).Footnote 441

An Alford plea means an accused pleads guilty while still declaring innocence whereas in nolo contendere cases, which have existed since the Middle Ages, the accused simply refuses to admit guilt.Footnote 442 A no-contest plea means the accused is neither admitting nor denying guilt but accepts that the judge will impose a sentence for the offence. An Alford plea, on the other hand, means the accused maintains innocence but agrees to plead guilty and be sentenced as if guilty. The U.S. Supreme Court in North Carolina v AlfordFootnote 443 held that a guilty plea is valid if it is voluntary and an intelligent choice among the available alternatives.Footnote 444 In that case, the accused testified that he had not committed the murder but was pleading guilty to avoid the death penalty. Under North Carolina law at the time, the penalty upon conviction for first-degree murder was death unless the jury recommended a life sentence, but a guilty plea would reduce the penalty to life imprisonment.Footnote 445

In the 2017 Senate report, one witness suggested that a third plea option other than guilty or not guilty could be useful in Canada so that the accused would not necessarily tie up the system by fighting the matter. Using an alternative form of third plea could be useful for minor offences and specific categories of offenders, such as vulnerable and repeat offenders and those who are often before the courts for reasons related to addiction and mental health, the witness suggested.Footnote 446 Some academics have argued similarly: that innocent-but-guilty pleas should be permitted, at least in what have been described as low-stakes cases, where accused persons believe they cannot endure the financial, emotional and other costs of fighting the charge, and the penalty for admitting guilt is not considered unacceptable. Those same academics suggest that accused in high-stakes cases are better off without plea-bargaining or with at least reduced plea-bargaining pressures.Footnote 447

Some American academics argue that these two additional forms of plea make it easier for innocent people in the U.S. to avoid stiffer sentences.Footnote 448 Despite these American plea options, the Martin Report concluded that “it was not in the interests of justice in Ontario to permit a guilty plea to stand where an accused maintains his or her innocence.”Footnote 449

The Subcommittee takes no position on these other forms of plea that exist in the United States. They are mentioned only in the interests of providing information about how other countries are addressing similar legal challenges in their criminal justice systems and in the spirit of identifying for further consideration any and all possible options that could play a role in reducing the risks of false guilty pleas in Canada.

7. A Comment on Resources

Finally, the Subcommittee makes the general observation that properly resourced police and prosecution services, as well as legal aid plans that enable indigent accused to secure defence counsel, can be expected to assist in reducing the risk of false guilty pleas. Sufficient resources help to ensure adequate staffing and proper training of police and Crown prosecutors, which in turn helps to ensure proper and thorough police investigations, Crown screening, and prosecutions where the test for prosecution has been met. Likewise, adequate funding of legal aid plans can assist in ensuring that impoverished accused persons receive adequate assistance from defence counsel.

VI. Recommendations

  1. The federal government and other appropriate federal and provincial entities in Canada should undertake research regarding:
    1. the circumstances that lead to false guilty pleas in Canada;
    2. the extent of the phenomenon;
    3. the extent to which certain groups may be particularly vulnerable to false guilty pleas, and, if so, why; and
    4. what changes, if any, should be made to reduce the risk of false guilty pleas in Canada.

    In particular, this research should examine:

    • the factors that have been identified as playing a role in false guilty pleas, to determine the significance of each factor, such as the impact of being denied bail or being offered more lenient sentences in exchange for guilty pleas;
    • the impact of the proposed amendment to s. 606 of the Criminal Code in Bill C-75, if it becomes law, to assess whether it addresses concerns about this section that have been raised in the academic literature;
    • the longstanding principle that an early guilty plea is a mitigating factor at sentencing and its relationship to false guilty pleas;
    • the experience of other countries, such as Britain and various United States jurisdictions, which have either limited the size of the sentence discount that is offered to an accused in exchange for an early guilty plea, or banned or curtailed plea bargaining, to assess the impact of such approaches on reducing the risk of false guilty pleas;
    • whether other Criminal Code amendments are required to better guard against false guilty pleas;
    • whether an accused person in Canada should have additional plea options; and
    • whether the mandatory use of a model uniform plea comprehension form in Canada would assist in reducing the risk of false guilty pleas.
  2. Prosecution services in Canada should review Crown policies regarding resolution discussions and other relevant policies, such as the Decision to Prosecute and bail policies, to ensure they contain adequate safeguards, guidelines and clear direction to prosecutors, to assist in guarding against false guilty pleas.

    In particular:

    1. All prosecution services have policies that indicate that a criminal charge cannot proceed unless there is a reasonable prospect of conviction, or words to that effect. All Decision to Prosecute policies of Crown prosecution services should be reviewed to ensure they clearly state that the Crown can proceed with a prosecution only if the decision to prosecute test has been met, and that plea resolution discussions cannot proceed where this standard is not met;Footnote 450
    2. During resolution discussions, Crown prosecutors should be alive to the risks that:
      1. an early guilty plea offer may create an incentive for a factually innocent person to plead guilty, and
      2. a factually innocent person who has been detained, particularly for a minor offence, may be motivated to plead guilty.
  3. The Federation of Law Societies of Canada, as well as provincial and territorial law societies, should examine their rules of professional conduct to ensure they provide adequate and clear direction to defence counsel and Crown counsel, to the extent appropriate, to better guard against factually innocent persons pleading guilty.
  4. The National Judicial Institute and other organizations that provide educational programs and resources for judges in Canada, should be encouraged to continue to provide content that includes the state of the research concerning the phenomenon of false guilty pleas in Canada, and the role of judges in the prevention of false guilty pleas.

Appendix A

Agreement to Enter Guilty Plea

I, ____________________________________, am charged with the offence(s) of:

__________________________________________________________________

_________________________________________________________________.

I understand that the prosecutor is seeking a plea of guilty to the following charge(s):

_________________________________________________________________

_________________________________________________________________.

I read, write, speak and understand English, OR I understand the court-ordered interpreter who will be helping me in court.

I have not taken any medicine, pills, drugs, alcohol or substances that may affect my ability to make a decision about what I should do about the charge(s) or my understanding about what may happen when I plead guilty in court.

I have talked with duty counsel (or my own lawyer), and any questions about my understanding of the charge(s) against me and this guilty plea have been discussed and answered.

Before making this plea, I agree that I have been advised of, and understand:

  1. I have the right to plead not guilty and have a trial. At that trial the prosecution would have to prove the case against me beyond a reasonable doubt. I agree to plead guilty and give up my right to a trial.
    • Yes
    • No
    • ______________________________ Initial
  2. I am pleading guilty voluntarily, without pressure from anyone.
    • Yes
    • No
    • ______________________________ Initial
  3. I have read the facts contained in the written document (“synopsis”) I have received from the prosecution, and I am prepared to admit that those facts are true. I understand that the Judge may discuss those facts with me before accepting my plea of guilty.
    • Yes
    • No
    • ______________________________ Initial
  4. I understand that as a result of my plea I will have a criminal record (or if I already have a criminal record, I will add to it).
    • Yes
    • No
    • ______________________________ Initial
  5. I have been told that the prosecutor will be asking for the following sentence:

    ____________________________________________________________

    ___________________________________________________________.

    I understand that I can agree with the sentence the prosecutor seeks (a joint submission) or that I can suggest another type of sentence (an open submission).

    • Yes
    • No
    • ______________________________ Initial
  6. I understand that the Judge does not have to accept the sentence suggested by the prosecutor or by myself. I understand that the Judge may discuss this with me before deciding what sentence the Judge thinks is right. I understand that the Judge may give a higher or lower sentence than the prosecutor suggests.
    • Yes
    • No
    • ______________________________ Initial
  7. I am aware that there may be other indirect penalties that may come as a result of my guilty plea. Some of these may include losing my right to remain in Canada or not being able to travel to other countries, my ability to have a driver’s licence, my car insurance rates, any family law proceedings, as well as my current job and future job opportunities. I am aware that I have a right to talk to a lawyer who could advise me about these penalties before I enter my plea.
    • Yes
    • No
    • ______________________________ Initial

Signature of Accused: ________________________________________________

Signature of Witness: ________________________________________________

Date: _____________________________________________________________

Appendix B

Modified: September 14, 2016

PLEA COMPREHENSION INQUIRY

I ____________________________________. Date of Birth: ________________

State that I have instructed Counsel that I wish to Plead Guilty to the following charge(s):

__________________________________________________________________

__________________________________________________________________

_________________________________________________________________.

I have instructed Counsel from the Counsel office to represent me for this Guilty Plea.

I am aware of the Crown’s Position on sentence as follows: (include charges accused is pleading guilty to and Crown’s position)

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

_________________________________________________________________.

I am aware that Counsel, on my behalf, will recommend to the judge that the appropriate sentence is:

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

_________________________________________________________________.

I understand that:

____________________________________________________________

Furthermore, Counsel has explained the consequences of pleading guilty to me. I understand that:

[If applicable, Counsel should indicate which phrase applies]:

I have refused to do this ______________________________________________

I have spoken directly to an immigration lawyer ___________________________

Counsel has sought advice from an immigration lawyer on my behalf __________

I understand that the information on this form is to clarify the consequences of a guilty plea. My signature is not a commitment to enter a guilty plea, and I can change my mind about my plea at any time until my plea is actually entered before the court.”

(*Advise client of any other/collateral consequences, where known, and make a note.) Other instructions or customization of guilty plea

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

Signature of Accused ________________________________________________

Date ________________________ Counsel ____________________________

This inquiry MUST be completed for EVERY plea represented by Counsel (staff and per diem) for both in and out of custody clients and attached to the intake.

Instructions to Counsel:

  1. Counsel must not assist on any part of a plea - including sentencing - where the accused has not admitted the essential elements of the offence.
  2. Counsel must ask the Judge to conduct the s. 606 inquiry on the record, notwithstanding the use of this form.
  3. Counsel should not admit the facts on the record for the accused person. The accused person should be asked to admit the facts personally on the record.
  4. Where there is the possibility of immigration consequences due to the plea, Counsel should obtain permission from the accused to indicate on the record that Counsel has advised the accused to seek immigration advice before entering the plea and the client has chosen to proceed today without this advice. If the client does not want this indicated on the record, Counsel should advise that the court may, of its own accord, ask the client about his/her immigration status and that Counsel will refer the question to the accused directly for response.

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