Kalina Tejpal Lawyers



To Plead Or Not To Plead?

09 January, 2017

Photo of Lawyer Hans 'John' KalinaBy Hans 'John' Kalina

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To Plead Or Not To Plead (Guilty)?

Pleading guilty to a criminal offence has consequences. Some foreseen and some unforeseen. It is important to be aware of those consequences prior to deciding to plead guilty to an offence. This is not something to be taken lightly and certainly not without due consideration for all of the consequences.

A criminal proceeding can be broken down into four main components. The first stage entails release from custody, more commonly known as bail. The second stage involves gathering disclosure of the evidence for and against you, contemplating strategy and procedure. The third stage is the trial of the case on the merits. The fourth stage, if found guilty, is the sentencing hearing.

Pleading guilty to an criminal offence, takes an accused person straight to the fourth stage. It’s human nature to fear the worst. So it’s not surprising that when people who come into our office to discuss their case, the discussion inevitably turns to the sentencing phase and the consequences of being found or pleading guilty. The consequences can, depending on the circumstances, be quite severe. Some of the consequences may be (this is not an exhaustive list):

  • For a foreign national or permanent resident of Canada, you may be subject to removal from Canada and become inadmissible to Canada.
  • For a permanent residence, you may be precluded from sponsoring a family member for 5 years.
  • A permanent resident may no longer be eligible for Canadian citizenship for many years.
  • You may lose custody or access to children in a family law proceeding, particularly if the offence involves violence to partner.
  • You may lose your employment.
    • Many employers require their employees or contractors to be bonded by an insurance company. An insurance company may deny coverage for anyone with a criminal record.
    • Your licence to practice your profession may be revoked. Most licensed professionals such as real estate agents, insurance agents, lawyers, engineers, physicians, nurses, paramedics among others, are required to be of ‘good character’. A criminal conviction may put their licence in jeopardy.
    •  Your trade or specific licence may be revoked. If you are an electrician, plumber, mechanic, taxi driver, or armoured car driver, a criminal conviction could jeopardize your career.
  • You may be liable for costs in a civil proceeding. For example, you may be sued for inflicting personal injury or damage to property.
  • Your insurance coverage may be denied. Most automobile insurance policies will deny coverage for an accident if you are convicted of a criminal offence.
  • You may be subject to a prohibition from possessing any firearms. This is mandatory for any crime involving violence.
  • You may be required to provide a sample of your DNA for inclusion in the national DNA databank.
  • You may be required to register with the sexual offenders registry and provide your current address at all times.
  • You may be subjected to a probation order where a probation officer will compel you to perform community service hours, take counselling programs or report periodically.
  • You may be required to undergo a mental health assessment or treatment. In some cases, sentencing may delegated to the Ontario Review Board resulting in months or even years in a mental health facility.

If, after reviewing all of the possible consequences, you still decide that you wish to plead guilty; the process involves five distinct parts.

The first step is the plea comprehension inquiry. Here you will be asked whether you understand the following:

  1. You have the right to a trial. You are presumed to be innocent of any criminal charge, until you are found guilty beyond a reasonable doubt based on admissible, credible and reliable evidence. You are voluntarily giving up that right to a trial.
  2. You are pleading guilty voluntarily. Nobody is forcing you or making any promises to you.
  3. You are giving up your right to any possible defences.
  4. You are admitting your guilt to the essential elements of the offence. You are admitting that you committed the offence and intended to do so.
  5. The judge is the ultimate determiner of the punishment for the offence, no matter what the prosecutor and your defense lawyer say or agree to.

The second step is the reading of the charge(s) against you. You will be asked whether you plead guilty or not guilty. This is your first moment of truth.

The third step is the reading, by the prosecutor, of the allegations of the facts substantiating the charge. You will be asked whether the facts are correct. This is your second moment of truth.

The fourth step entails the submissions of the prosecutor and defence lawyer to the judge as to the appropriate sentence. Following the lawyers, you will be asked whether you have anything that you wish to say to persuade the judge.

The fifth and final step is the imposition of punishment by the judge. A judge may postpone this step and require a pre-sentence report to be produced to assist them with the sentencing process. This may be a simple or very complex process, depending on the charge before the court and your personal situation.

Before deciding to plead guilty, you must be prepared to admit that you not only committed the offence but also that you intended to commit the offence. To be guilty of a criminal offence, you must have both the intent to commit the action and the committal of that action. For example: on a theft charge, you must not only take an item that does not belong to you, but also intend to take it. Forgetting that you have it is a defence because you did not intend to take it.

You should never plead guilty to any criminal offence just to “get it over with”; even if you are denied bail and stuck in jail. You should also not plead guilty because you cannot afford a lawyer or because you want to see your children. The list of consequences, as shown above, can be too severe for an impulsive plea of guilt. Appealing or changing a guilty plea after the fact, can be extremely difficult if not impossible to correct.

As you can see, getting the right legal advice is important. It may just save you from an enormous mistake. Contact the lawyers at Kalina & Tejpal at 416-900-6999 or at mail@lawyer4u.ca to see how we can help you through your period of difficulty.

Tags: criminal defence, information

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