Canadian criminal justice: Guilty plea

6 - Pre-charge diversion

When a person is charged with an offence, they have the right to plead “guilty” or “not guilty.” When a person pleads guilty, they give up their right to a trial, they give up their right to make the prosecution prove their case, and they admit that they committed the essential elements of the offence.

Creating options and making the decision

Some people who are charged with offences feel so weighed-down by the process that they want to plead guilty just to put themselves out of their misery. Other people who are charged with offences may think that their case is hopeless and want to plead guilty because they think there is no other option. Every person who is charged with an offence should obtain professional advice and understand their rights, their options, and their jeopardy before making the important decision to plead guilty. One of the most important things a lawyer can do is give their client a sense of clarity, security, and direction before making this important decision.

A defendant is not required to plead guilty to the offence or offences as charged. A defendant might plead guilty to a “lesser and included offence” but not guilty to the offence as charged. For example, a person may be charged with assault causing bodily harm, but only plead guilty to the lesser and included offence of assault. If a defendant is charged with more than one offence, then they might also plead guilty to only some offences but not guilty to others. For example, if a person is charged with operating their motor vehicle while impaired and also with operating their motor vehicle while “over 80,” they might plead not guilty operating while impaired but guilty to operating while “over 80.” If the prosecution does not accept the defendant’s pleas of guilt, then there will be a trial on anything that remains.

The Canadian criminal justice system provides some benefits for persons that decide to plead guilty.

  • The prosecution may decide to drop some charges if the defendant pleads guilty to other charges or the prosecution may accept a guilty plea to a “lesser and included offence.” The prosecution will sometimes offer to take a lower sentencing position if the defendant pleads guilty, especially before any trial dates are scheduled.
  • If the prosecution and the defendant can agree on some or all of a sentence (called a “joint submission” or a “plea bargain”), then the judge will normally follow that joint submission.
  • The sentencing judge will normally treat the decision to plead guilty as a "mitigating" factor – the judge lowers the sentence he or she would otherwise impose because the defendant has accepted responsibility and avoided the costs of a trial.

However, depending on the defendant's background, the circumstances of the alleged offence, and the state of the evidence, these benefits may be outweighed by the potential benefit of running a trial.


Some courthouses have special “guilty plea courts” and some courthouses assign certain days of the week to hear guilty pleas. In court, the procedure for a standard guilty plea is as follows:

  • First, the defendant will stand before the court for the arraignment – the clerk of the court will read out the formal charge and then ask the defendant for their plea. (Some judges will also ask the defendant a few questions to make sure that they are pleading guilty voluntarily and that they understand what it means to plead guilty.)
  • Second, the defendant will enter his plea to that charge by saying “guilty” and sitting down again.
  • Third, the prosecutor reads out a summary of the alleged facts, usually from a police synopsis or an agreed statement of facts. In response, the defendant’s counsel will accept the facts and add any other details or qualifications about the facts that may be necessary.
  • Fourth, if the judge is satisfied that the accepted facts prove the offence, then the judge will “make a finding of guilt.”

From there, the court might proceed directly to the sentencing hearing or the court might adjourn the case for a sentencing hearing on another date, perhaps to give the defendant time to do community service, save money for restitution, take rehabilitative programming, or complete a “pre-sentence report” with a probation officer.

It is possible for a person to strike their plea or appeal against their own guilty plea. In order to successfully strike or appeal a guilty plea, the defendant must show that their plea was either “equivocal” (meaning that they did not clearly accept responsibility) or “involuntary” (meaning that they did not have the ability to understand the process and make an active or conscious choice). This is a high standard, which makes it difficult to win this kind of argument. Again, it is very important that individuals understand their rights, their options, and their jeopardy before deciding to plead guilty in the first place.

Our lawyers carefully consider the evidence against our clients and weigh the advantages and disadvantages of going to trial. Part of our job is to create options – to find the best result after trial and to find the best result on a plea of guilt, if necessary. We explore all options before advising our clients to plead guilty. We have also assisted individuals to appeal their prior guilty pleas.

Contact the lawyer of your choice for a free consultation.

This blog post is part of our Canadian criminal justice series – we hope that these blog posts will shed some light on the Canadian criminal justice system for clients and potential clients, members of the community, and law students. Feel free to e-mail us at to propose any changes or updates.