A. Procedural Considerations
| Author | Kent Roach |
| Profession | Faculty of Law and Centre of Criminology. University of Toronto |
| Pages | 472-475 |
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In most cases, the accused pleads guilty to an offence. A guilty plea by the accused means that there will be no formal determination of whether the Crown can prove the accused’s guilt beyond a reasonable doubt, and the trial process will move directly to the sentencing stage. An early guilty plea is an important mitigating factor in sentencing, on the grounds that it indicates remorse and saves the victim and the state the costs of a trial.5Courts have held that an accused who is sentenced after a full trial is not deprived of his or her Charter rights by not having the advantage of a guilty plea considered in mitigation of sentence.6
Sometimes a guilty plea is accompanied by a joint submission by the Crown and the accused concerning sentencing. This submission does not, however, bind the trial judge from exercising his or her sentencing discretion.7Canadian courts have not required trial judges to determine whether there is a factual basis for a guilty plea and whether the guilty plea is truly voluntary and unequivocal. In the disturbing case of Brosseau v. R.,8the Supreme Court did not allow a young Aboriginal accused to withdraw his plea to non-capital murder, even though the accused claimed that he did not understand the consequences of entering the guilty plea. Cartwright C.J. indicated that a trial judge should usually make inquiries if there is a doubt as to whether the accused understands what he is doing, but concluded: "[I]t cannot be said that where, as in the case at bar, an accused is represented by counsel and tenders a plea of guilty to non-capital murder, the trial Judge before accepting it is bound, as a matter of law, to interrogate the accused."9In that case, the accused’s lawyer had indicated to the judge after sentencing that he did not pretend to have any understanding of his client’s intent, a matter quite relevant to whether the accused was guilty of murder.
In a subsequent case, the Supreme Court affirmed the laissez-faire approach of Brosseau over a strong dissent by Laskin C.J., who argued that judges should be required by law to ensure that the guilty plea "be made voluntarily and upon a full understanding of the nature of
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the charge and its consequences and that it be unequivocal."10Laskin C.J. would also have required that in cases of doubt, the trial judge should ensure that there was a factual basis for the guilty plea. The Laskin approach, at least with respect to determining whether the guilty plea is voluntary and made in full awareness of the consequences, may be more appropriate under the Charter, because a person who pleads guilty is waiving his or her rights under the Charter to a fair trial. Section 36 of the Youth Criminal Justice Act provides a model for reform: it requires the court to be satisfied that the facts support the charge but 606 (1.1) of the Code only requires that the plea be made voluntarily by an accused who admits to the essential elements of the offence and who understands the nature and consequences of the plea including that the court is not bound by any agreement made between the accused and the prosecutor. A failure of the court to inquire into even these conditions does not affect the validity of the plea. There have been cases where innocent accused have pled guilty in order to receive a more favourable...
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