Anyone charged with a crime is expected to plead either “Guilty” or “Not Guilty.”
However, there are also some other options that can be negotiated between lawyers.
NOT GUILTY PLEA = TRIAL
(Trial = Guilty or Not Guilty)
If you plead “Not Guilty” to an offence, then your matter will be scheduled for trial.
The purpose of a trial is to determine whether you are guilty or not guilty.
Your trial date will be scheduled for some time in the future – usually between 2-12 months down the road.
Factors That Determine Trial Dates:
- Trial Complexity: Some trials are simple and straightforward (like an assault or shoplifting) and can take only up to one day to complete (ex: only one witness). Other trials are technical and complex (like homicides or white collar crimes), and may take anywhere from a few days to a few weeks, or even months or years to complete (ex: multiple co-accused, numerous civilian and police witnesses, experts, fingerprints, photo line-ups, DNA, GSR, ballistics, medical records, forensics, computer analysis, undercover surveillance, accident reconstruction, documents, photographs, maps, audio or video recordings, transcripts, remote testimony, Constitutional challenges, voir dire evidence, pre-trial motions, jury selection, interpreters, legal argument, continuations, mistrials, appeals, etc.).
- Court Availability: This differs from one jurisdiction to another. Some places are extremely busy, others not so much. Some places sit every day, some only once or twice per week or per month.
- Crown Availability: If the matter has an assigned Prosecutor, then their calendars must be taken into account. Some Prosecutors are much busier than others.
- Defence Availability: If you have a lawyer, then his or her schedule will also be taken into consideration. If there are more than one lawyer, representing more than one accused, then each of their calendars must also be considered.
- Judge Availability: If a particular judge is seized with the case, then their schedule must also be considered.
In addition, not all trials will proceed as scheduled. Whether or not your trial even proceeds on its scheduled trial date will depend on numerous unpredictable factors, such as: How many other matters were scheduled for that date; whether other matters are proceeding, or being resolved, and how long they will take; whether or not all parties are present (witnesses, lawyers, clerk, judge, accused); whether or not an adjournment is required for whatever reason (ex: missing evidence); which scheduled trial takes priority; and whether the court has time that day. Sometimes, a trial just needs to be rescheduled.
If your trial proceeds to completion, then only one of two possible outcomes:
- You are found Not Guilty, and the charges against you are dismissed, or
- You are found Guilty, and then proceed to sentencing.
Advantages and Disadvantages to Pleading Not Guilty:
- Sometimes, an essential witness does not show up on trial day, and the Crown is forced to call no evidence, resulting in the charges against you being dismissed.
- The Crown is always more willing to make a reasonable resolution offer on trial day, in order to avoid running a trial.
- If the witnesses do show up, you get to cross-examine them and challenge the truthfulness of their evidence.
- You never know what a witness will say on the stand, or how they say it. All sorts of new facts are always revealed.
- The more witnesses, the better. Every witness will present a slightly different version of events. Each discrepancy is an opportunity to question the credibility of the evidence, and to create reasonable doubt.
- You get to testify and explain your side of the story.
- You only testify after all of the Crown’s witnesses have testified, so you get to hear all of the evidence against you, and to respond to each detail accordingly.
- There is a likelihood that you are found Not Guilty.
- You are presumed innocent until proven guilty. This means that you do not have to prove that you are not guilty. The Crown must prove that you are guilty.
- The Crown carries the burden of proving guilt beyond a reasonable doubt.
- Even if you are found guilty, the judge got to know you, and the whole situation, very well, and may have developed sympathy for you, which may assist in sentencing.
- After hearing all of the evidence, and both sides of the story, the Crown may be motivated to withdraw the charges, or to offer a more compelling resolution proposal.
- Sometimes, the Crown simply enters a “Stay of Proceedings” before trial, for no apparent reason. This happens in my cases approximately 15% of the time.
- If the trial needs to be rescheduled, or if it takes too long to complete, then your lawyer may argue for a “Judicial Stay of Proceedings” for unreasonable delay. In general, the deadline for Indictable matters is 30 months, and for summary conviction matters is 18 months.
- There are too many unpredictable variables over which you have no control.
- You never know what to expect, so a trial can be extremely stressful.
- You don’t know which judge you will get (Nice Judge or Mean Judge), or what kind of mood s/he will be in.
- You don’t always know which Prosecutor you will get (Easy Crown or Ruthless Crown), or what kind of mood s/he will be in.
- You don’t know whether the witnesses will show up, or what kind of mood they will be in (scared, nervous and intimidated, or emotionally distraught, angry and out for vengeance).
- You can’t predict whether the evidence will come out in your favour, or against you.
- Sometimes the evidence at trial can be far more damaging than you expected. Some witnesses bring up past incidents, or additional gruesome details, that make you look far worse than what they told the police; some witnesses go through a box of Kleenex, crying about how you destroyed their lives; etc.
- You don’t know how the judge will view you (as a good person deserving compassion, or as a bad person deserving no mercy).
- If you are found guilty, then usually you end up with a more severe sentence. For example, with a criminal record, instead of a discharge; or you could end up in jail, instead of on probation.
GUILTY PLEA = SENTENCING
If you plead Guilty to an offence, then you give up your presumption of innocence, and your right to a trial (you are presumed innocent until proven guilty, beyond a reasonable doubt, and you are entitled to make them prove that you did what they are accusing you of doing).
In addition, you must comply with the following requirements from the Criminal Code:
s.606(1.1): (a) You enter the guilty plea freely and voluntarily;
(b) You admit the facts being alleged to support the charge;
(c) You understand that you may have a criminal record as a consequence; and
(d) The judge has the ultimate say in your sentence, and is not bound by any deal made in advance with the Crown.
If you plead guilty, then you will need to be sentenced.
If you want to get it over with right away, if it is a relatively minor charge, with simple facts, an easy penalty, and if the court has time and agrees, and if the Crown is prepared to proceed, then you may get sentenced right away (especially if you are in custody).
However, usually you will be required to schedule a “disposition date,” for a scheduled sentencing hearing, at a later date.
If, however, you want to delay sentencing as long as possible, or if your lawyer is at odds with the Crown regarding an appropriate sentence, then you may request the preparation of a Pre-Sentence Report, and/or a FAOS (psychological and/or psychiatric) report, which typically take approximately 4 months to complete. Alternatively, you are also generally free to schedule a date of your choosing (within reason, and subject to the court’s approval).
When you schedule a sentencing date, then you have access to the judges’ schedule and can have a say in which judge will hear your sentencing submissions. This is where a lawyer’s experience with, and knowledge of, the various judges can work to your advantage. Experienced lawyers tend to know which judges are more likely to agree with the sentence being proposed, and which ones are not. This can be especially important when your lawyer is seeking a different result than the Crown. For example, if the Crown is asking for jail, and your lawyer is seeking a Discharge.
OTHER = NO CONVICTION
This is where alternatives to the typical “Guilty” or “Not Guilty” pleas are considered, and include things such as: the Alternative Measures Program, Mental Health Diversion, Extra-Judicial Sanctions, or a Peace Bond.
The benefit to these alternative programs is that they result in your criminal charge being withdrawn.
Unfortunately, all of these alternative programs are subject to the discretion of the Crown only and cannot be decided by a judge. However, a skilled lawyer may be able to persuade a reluctant Crown to agree.
For more information about these programs, and about another way to avoid a criminal record view our sentencing page