From time to time an accused will advise us that while they are not guilty of the particular charge or allegation they are facing, they nonetheless want to enter a guilty plea or apologize in order to “just get it over with”. There are a number of legal and practical problems with doing this.
Concerning the legal implications, before the Court can accept a guilty plea under the Criminal Code, the Court must be satisfied that the accused:
1) Makes the plea voluntarily;
2) Understands that the plea is an admission of the essential elements of the offence;
3) Understands the nature and consequences of the plea; and
4) Understands that the Court is not bound by any agreement made between the accused and the prosecutor.
In other words, if the accused indicates to the Court that he/she is not admitting the essential facts of the offence but is simply entering a guilty plea to get it over with, the Court will not accept the guilty plea.
Similarly, the Code of Professional Conduct for lawyers in this Province provides under Rule 5.1-8(c) that a lawyer can enter into an agreement with the prosecutor and enter a guilty plea if the client is voluntarily prepared to admit the necessary factual and mental elements of the offence charged. If the client is not prepared to admit the factual and mental elements of the offence charged, then the lawyer would be in breach of the Code of Professional Conduct by appearing with the client to enter a guilty plea knowing that the accused was not admitting the factual and mental elements required to support the guilty plea.
The practical problem with entering a guilty plea just to get it over with is that there is no way to turn back the clock once the plea has been entered. In other words, if five years down the road the person is in trouble once again or is applying for a job and the offence shows up on a criminal record check, your explanation that you did it just to get it over with won’t fly. You are stuck with that record.
The same would apply if you entered a guilty plea, for example, to an assault charge just to get it over with and then later on were sued by the complainant. The guilty plea and resulting conviction would be an admission used against you and would assist the complainant in proving the claim against you.
An extension of this is applicable in today’s environment when we are seeing numerous examples of sometimes anonymous complaints being made against individuals about various things stretching from harassment, bullying, assaults, to sexual assaults. Sometimes individuals are pressured by those around them, including employers, business managers, agents, family, and friends, etc. to make some sort of admission of responsibility and tender an apology. There is nothing wrong with doing that if you indeed are guilty of what you are apologizing for. However, you should know that if you make an admission acknowledging responsibility and tender an apology, that can and will be used against you in further criminal or civil proceedings if any should take place. There is no limitation period as to when a criminal proceeding or a civil action for a sexual assault can be commenced. As a result, an incident that occurred 10 years ago could still result in a criminal charge or civil action and your admission will be used in evidence against you.
The bottom line is that publicly accepting responsibility for a misdeed is a moral decision that each individual has to decide. Publicly accepting responsibility for something that you did not do can have serious unwanted legal implications.
Our Defence Group lawyers are able to walk you through the pros and cons of how best to proceed when you are accused of something. This will allow you to make an informed decision about how you want to respond.
Aaron A. Fox, Q.C.
McDougall Gauley Defence Group
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