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Difference between revisions of "Resolving Criminal Matters Prior to Trial (1:VI)"
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Resolving Criminal Matters Prior to Trial (1:VI) (view source)
Revision as of 12:26, 25 August 2022
, 12:26, 25 August 2022→D. Pleading guilty
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== D. Pleading guilty == | == D. Pleading guilty == | ||
A guilty plea is appropriate when: | A guilty plea is appropriate only when all of the below are true: | ||
*diversion is not granted, | *diversion is not granted, | ||
*a peace bond is not appropriate, | *a peace bond is not appropriate, | ||
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*it appears that the Crown will be able to prove its case, and | *it appears that the Crown will be able to prove its case, and | ||
*the accused wishes to plead guilty. | *the accused wishes to plead guilty. | ||
Section 606 of the Canadian Criminal Code outlines the conditions that need to be met for a court to accept a guilty plea. These include that: | |||
• the accused is making the plea voluntarily; | |||
• the accused understands that the plea is an admission of the essential elements of the offence, the nature and consequences of the plea, and that the court is not bound by any agreement made between the accused and the prosecutor; | |||
• the facts support the charge. | |||
The court has an obligation to ensure that Section 606 has been canvassed with the accused before accepting any guilty plea and should canvass these matters directly with the accused unless the accused is represented by legal counsel who assures the court that section 606 has been canvassed. Legal counsel should canvass these matters with the client prior to the guilty plea and take detailed notes of this interaction, if there is any doubt about the clients understanding of this interaction counsel should have the court canvass section 606 directly with the accused. | |||
If an accused person wishes to plead guilty then the court appearances should be adjourned to allow sufficient time to “negotiate” with Crown Counsel for the most appropriate sentence. For self-represented litigants, a duty counsel will assist with a sentencing negotiation with a Crown. It is generally a very good strategy to talk to Crown in advance about a joint submission where both sides agree on a sentence. Most Crown Counsel will be eager to agree to a reasonable sentencing position. Whether an agreement can or cannot be reached with the Crown, a sentencing hearing will be scheduled at which the accused/defence can present their position. If an agreement is reached with Crown, it is important to know that the judge is not bound by a joint submission. Though making a joint submission does increase the likelihood the accused will get the sentence defence is arguing for, it does not guarantee it [''[https://www.canlii.org/en/ca/scc/doc/2016/2016scc43/2016scc43.html?resultIndex=1 R. v. Anthony‑Cook]'', 2016 SCC 43]. See '''Appendix E: How to Prepare for and Conduct a Sentencing Hearing''' for the process of a guilty plea. | If an accused person wishes to plead guilty then the court appearances should be adjourned to allow sufficient time to “negotiate” with Crown Counsel for the most appropriate sentence. For self-represented litigants, a duty counsel will assist with a sentencing negotiation with a Crown. It is generally a very good strategy to talk to Crown in advance about a joint submission where both sides agree on a sentence. Most Crown Counsel will be eager to agree to a reasonable sentencing position. Whether an agreement can or cannot be reached with the Crown, a sentencing hearing will be scheduled at which the accused/defence can present their position. If an agreement is reached with Crown, it is important to know that the judge is not bound by a joint submission. Though making a joint submission does increase the likelihood the accused will get the sentence defence is arguing for, it does not guarantee it [''[https://www.canlii.org/en/ca/scc/doc/2016/2016scc43/2016scc43.html?resultIndex=1 R. v. Anthony‑Cook]'', 2016 SCC 43]. See '''Appendix E: How to Prepare for and Conduct a Sentencing Hearing''' for the process of a guilty plea. | ||
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In cases where a judge finds it appropriate to impose consecutive sentences, they must ensure that the entirety of the sentence is not excessive, in keeping with the Totality Principle. According to this principle, the global sentence imposed by the judge must be proportionate to the gravity of the offences and the degree of responsibility of the offender. The sentence must also respect the principle of parity, which requires that similar sentences are imposed for similar offences committed by similar offenders in similar circumstances. | In cases where a judge finds it appropriate to impose consecutive sentences, they must ensure that the entirety of the sentence is not excessive, in keeping with the Totality Principle. According to this principle, the global sentence imposed by the judge must be proportionate to the gravity of the offences and the degree of responsibility of the offender. The sentence must also respect the principle of parity, which requires that similar sentences are imposed for similar offences committed by similar offenders in similar circumstances. | ||
The judge also has discretion to credit an accused with any time spent in custody as a result of the charges. | The judge also has discretion to credit an accused with any time spent in custody as a result of the charges. | ||
== E. Sentencing hearing == | == E. Sentencing hearing == | ||
