​​How to decide whether to plead guilty or go to trial

By Greg Dunn

After you are charged with a criminal offence, you have an important decision to make – how to respond to the charge. That choice will set the course for the rest of the legal process.

Whether to plead guilty or go to trial is entirely your decision. It’s a genuinely personal decision, and it also depends on the circumstances of your case.

Because there are many variables at play with any criminal charge, it is advisable to speak to a criminal lawyer before making a decision on how to plead. Legal counsel can assess your case and advise you on the best course of action.

We outlined some steps to guide you through this process.

Study your disclosure

First things first: you have to learn your case. As soon as your lawyer receives the disclosure, you should ask for a copy or try to meet with them and get a copy.

You should go thoroughly to every single page, read everything, listen to every single recording and video. Try to remember what happened, how it happened and if there is something that your attorney must know. Any detail can make a difference. Also, mark pages, take notes, and write down all your questions. Be prepared.

Meet your lawyer to go over your case

You need to review the disclosure with your attorney. Call the office and schedule an in-person meeting or a phone call with your lawyer. You should ask all questions arising from your own review of the disclosure and ask them their opinion about the strengths and weaknesses of the Crown’s case against you. This meeting should occur some time before deciding to plead guilty or go to trial, so you have time to think about your options and decide.

Review every charge and the elements of the offence

While reviewing the disclosure, remember that the prosecutor must prove every element of the offence beyond a reasonable doubt. The elements of the offence are established from the explicit wording of the offence in the Criminal Code and are implied by the judicial interpretation of the offence. Each offence has its own elements. Ask your lawyer if you have any questions about it.

Know the consequences of your choices

When you decide to go to trial, it’s crucial to understand the realistic outcome of your trial, as well as the best and the worst case scenarios. Your lawyer should explain the minimum and maximum sentence, if you will have to do jail time, be on probation, and for how long if you are convicted. Maybe you can get time served. They should also explain the collateral consequences of the conviction: monetary penalties, fines, restitution, forfeiture, DNA order, driving prohibition order, weapons prohibition order, immigration consequences, SOIRA, etc.

Consider the advantages of pleading guilty and going to trial

Entering a plea. After reviewing the disclosure and meeting with your lawyer, before you plead guilty, you need to be aware of the consequences and advantages and disadvantages of entering a plea.

Advantages of pleading guilty

In some circumstances, it is advisable to plead guilty to the charge, especially if you admit to committing the crime. There are advantages of pleading guilty, also called taking a plea. These include:

Certainty: Trials are unpredictable and the outcome is uncertain, even if you have a strong defence. Agreeing to a plea agreement means that have a firm idea of what the sentence will be. However, keep in mind that regardless of whatever plea agreement your lawyer and the Crown agree to, the judge may impose any sentence that they see fit. That means that a harsher sentence is a possibility.

Lower costs: As long as the court accepts your guilty plea, a trial and the legal fees you would have incurred will be averted.

Reduced sentence: A guilty plea is a mitigating factor in sentencing. If you are considering pleading guilty, your lawyer can negotiate with the Crown attorney on the sentence and if you can plead guilty to a lesser charge.

Quick resolution: A guilty plea ends the judicial process other than any sentencing that may result. A not-guilty plea means you will have to wait months, or years, for the matter to be resolved.

Before accepting the guilty plea, the judge will want to confirm that you:

• are making the plea voluntarily and not under duress;
• understand the essential elements of the offence you are pleading guilty to; and
• realize you will have a criminal record.

The judge will also have to determine that the evidence supports the charge that the accused is pleading guilty to.

However, keep in mind that the judge is responsible for sentencing. They can reject the sentence suggested by the Crown and your lawyer and impose a longer sentence.

Advantages of pleading non-guilty

If you believe you are innocent or the prosecution’s case is weak, going to trial might be worth the risk. You must not plead guilty if you have been falsely accused of a crime.

If you are found not guilty, you will avoid a criminal record, which can affect your ability to obtain employment, education, housing and more.

Going to trial and being found not guilty is the only way for an innocent person to have justice. Conversely, if you are found guilty, it is likely you will receive a harsher sentence than if you accepted a plea deal.

It is always important to remember that those accused of a crime do not have to prove their innocence in our judicial system. The onus is on the Crown attorney to prove beyond a reasonable doubt that you committed an offence.

Make your decision

You should listen to your defence attorney carefully, but deciding to go to trial or take a plea decision is entirely yours. It is not your lawyer's decision, your wife's, your best friend's or your employer's. You are the one who will be affected directly, so make sure that before deciding, you have all information you need to make the best decision.

Call us for assistance

The decision to plead guilty or go to trial should not be taken lightly. Your liberty and standing in the community are at stake, so making the right choice at this stage of the judicial process is crucial. The lawyers at Dunn & Associates are passionate about protecting your rights. We will ensure that your dealings with the legal system are fair and equitable. Contact us for a free consultation or call 403-233-0443.