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| Patrick Ducharme |
A plea of not guilty in Canada effectively joins issue with the prosecution, challenging the prosecution to prove each and every essential element of the offence(s) beyond a reasonable doubt. A plea of not guilty encompasses all defences for which a special plea is not provided, including the defence of res judicata.
Section 613 of the Code provides that any ground of defence for which a special plea is not provided by this Act may be relied on under the plea of not guilty. If an accused refuses to plead, a plea of not guilty is entered on her behalf pursuant to subsection 606(2). An accused is expected to plead to each separate charge or count in an indictment. A refusal to plead to any particular charge or count in the information or indictment will cause the court to enter a plea of not guilty for that charge or count.
The court need not accept a guilty plea. The court, in each instance, is required to conclude that the plea entered by the accused is appropriate in light of the information provided to the court. If the court is not satisfied, the court will strike the plea of guilty and order the accused to proceed to trial.
If accepted, a plea of guilty is an admission of all the essential elements of the offence. To constitute a valid guilty plea, the plea must be voluntary and unequivocal. We do not permit conditional pleas of guilty. A guilty plea entered in open court is presumed to be voluntary, particularly where it is entered after consultation with experienced counsel.
A trial Judge has discretion to reject a guilty plea to a lesser or other offence arising out of the same transaction as the offence charged even if the prosecutor consents to the plea. The Judge normally is reluctant to interfere in such circumstances, but may where the facts indicate that the accused is not guilty of the offence to which the accused has pleaded guilty. A trial Judge has discretion to allow a change of plea from guilty to not guilty at any time before sentence. Once sentence has been imposed, however, the trial Judge has no jurisdiction to entertain an application to withdraw a plea of guilty. The Judge is said to be “functus” or without jurisdiction.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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