What is a Plea?

Criminal and quasi-criminal matters involve accused persons being “charged”: charges allege certain facts, and the prosecution must prove those facts beyond any reasonable doubt. Before the prosecution undertakes to do this, the accused person is “arraigned.” The arraignment is when the accused has their charges read to them, and in response the accused “pleads” or enters their plea.

In Canadian law, the main choices are to either plead guilty or not guilty. To plead here simply means to formally and officially take a position in the proceeding, of either guilty or not guilty. In some special circumstances, a person may enter a special plea of autrefois acquit, autrefois convict, pardon or an expungement order, instead of a plea of guilty or not guilty, but these cases are very rare.

If an accused person enters a guilty plea, they are admitting at the very least the essential facts that their charge alleges, and that no legal excuses or justifications apply. By pleading guilty the accused is disposing of the requirement of the prosecution to prove those facts, and the absence of any legal excuse or justification for which there is an air of reality, in accordance with law.

Because a guilty plea is a significant act in court, in order to accept a guilty plea, under both the Criminal Code and the Provincial Offences Act, the court must by law inquire that the accused person knows what they are doing (this is called a “plea inquiry”). An accused must not plead guilty if they did not commit the offence, and their plea must also be voluntary. The Court, and counsel, must also ensure that a guilty plea is an informed one under law. If an accused person enters a plea of not guilty, the matter will proceed to trial and the prosecution will have to prove the alleged facts beyond a reasonable doubt, in accordance with the law and rules of evidence.

All persons in Canada are entitled to be presumed innocent of any criminal charge and that presumption can only be displaced by establishing guilt in accordance with the rules of law before an impartial court. It is neither wrong, nor aggravating for a person to exercise their right to the presumption of innocence, which includes the right to a trial. Consult a lawyer before entering a plea and do so promptly.

Is entering a plea required? 

If the matter is proceeding and not being withdrawn, there should be an arraignment, with the expectation of a plea from the accused. The prosecution retains the discretion to withdraw charges, and sometimes a resolution can be fashioned by the parties that does not involve a plea or an arraignment. However, the normal course is for a plea to be entered.

In the modern system, under Canadian law, a plea of not guilty is considered the default. If a person refuses to enter a plea (or in some cases where the person is not present at all), a plea of not guilty will be entered by the Court, and the matter will proceed to trial.  This was not always the case. Historically, in English common law, a plea was required to be entered by the accused of either guilty or not guilty. The story of Saint Margaret Clitherow (1556 – 1586) is notable on this point. Having been charged, she refused to plead guilty or not guilty, and was sentenced to death by crushing, to force her to plea. She did not enter a plea but instead was crushed to death.

Can I take my guilty plea back?

Once a plea of guilty is entered it is very difficult to reverse it, and in many cases this may be impossible. However, in some circumstances an application to withdraw or strike a guilty plea, or an appeal regarding the

plea, can be successful. For example, if the plea was not an informed one in accordance with what the law requires, that may be a basis to strike the plea.

If you have entered a plea but are seeking to withdraw it, or appeal it, it is recommended that you consult with a lawyer as soon as possible, as there are likely strict deadlines and requirements involved.