Standard

Defence counsel must be satisfied that the accused’s guilty plea is voluntary, unequivocal and informed, and that the admitted facts support the charge.1

To be informed, defence counsel must be satisfied that the accused understands:
1) that the plea is an admission of the essential elements of the offence;
2) the nature of the plea having regard to the waiver of the right to a trial;
3) the criminal consequences of the plea;
4) the legally relevant collateral consequences of the plea,2 and,
5) that the court is not bound by any agreement between the accused and the prosecutor.

Commentary

I) A VOLUNTARY PLEA
As summarized by Hill, J. in R. v. Moser, [2002] O.J. No. 552 (S.C.J.) at para. 33:

A plea of guilty must be voluntary in the sense that the plea is a conscious volitional decision of the accused to plead guilty for those reasons which [they] regard… as appropriate…
…Ordinarily a plea of guilty involves certain inherent and external pressures… Plea negotiations in which the prosecution pursues a plea of guilty in exchange for forgoing legal avenues open to it, or agrees not to pursue certain charges, do not render the subsequent plea involuntary…
…What is unacceptable is coercive or oppressive conduct of others or any circumstance personal to the individual which unfairly deprives the accused of free choice in the decision not to go to trial…
…There is, of course, no closed list of circumstances calling into question the voluntariness of a guilty plea: pressure from the court…; pressure from defence counsel…; cognitive impairment or emotional disintegration of the accused…; effect of illicit drugs or prescribed medications… (citations omitted)

As noted by a unanimous Court of Appeal in R. v. Cherrington, [2018] O.J. No. 4012 at para. 21:

…To enter a voluntary plea of guilty, an accused need only be able to understand the process leading to the plea, communicate with counsel, and make an active or conscious choice. Whether the choice to plead guilty is wise, rational or in the accused’s best interest is not part of the inquiry…

The final decision not to proceed to trial rests with the accused and must be an exercise of their own free will. As the majority of the Supreme Court of Canada states in Wong, supra, at para. 11:

The decision to plead guilty reflects deeply personal considerations, including subjective levels of risk tolerance, priorities, family and employment circumstances, and individual idiosyncrasies. For this reason, it is one of the few steps in the criminal process where defence counsel are ethically required to seek their client’s direct instruction (R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 34).

Defence counsel should also be mindful to consider all the accused’s circumstances to ensure the plea is voluntary, including, but not limited to, the accused’s race, ethnicity, sexual orientation and disabilities such as mental health issues, intellectual disabilities and substance abuse issues.

II) AN UNEQUIVOCAL PLEA
Defence counsel must be satisfied that the accused’s intention to enter a plea of guilty is clear. There is no room for doubt, misunderstanding, or confusion.

As Hill, J. states in R. v. Moser, [2002] O.J. No. 552 (S.C.J.) at para. 32:
To be valid, the plea must be unequivocal – the circumstances should not be such that the plea was unintended or confusing, qualified, modified, or uncertain in terms of the accused’s acknowledgement of the essential legal elements of the crime charged…

III) AN INFORMED PLEA
Understanding that the Plea is an Admission of the Essential Elements of the Offence
Defence counsel must be satisfied that the accused understands that the plea is an admission to the essential elements of the offence.

Model jury instructions may be of assistance when drawing the accused’s attention to the requisite conduct and the associated mental element.

Understanding the Nature of the Plea Having Regard to the Waiver of the Right to a Trial
Defence counsel must be satisfied that the accused understands that by pleading guilty they are giving up their right to a trial before an independent and impartial tribunal, including a trial before a Supreme Court judge sitting with a jury if the accused has an election available with respect to the mode of trial.

The right to a trial encompasses fundamental procedural safeguards, including: i) The presumption of innocence; ii) The burden on the Crown to prove the allegation; iii) The high standard of proof beyond a reasonable doubt; iv) The right to make full answer and defence, and v) The right against self-incrimination.

The accused’s decision not to proceed to trial and to waive all potential defences is informed by counsel’s analysis of the case for the prosecution.3 When reviewing the disclosure materials counsel considers any potential defences and Charter remedies. Counsel also considers any information provided by the accused, and any issues specific to racialized accused,4 when making this assessment.

The accused may want to enter a guilty plea before counsel has had an opportunity to obtain full disclosure. There is nothing preventing counsel from assisting a client in such a situation. It may be in a client’s best interests to resolve the matter quickly before the prosecution has had an opportunity to disclose all relevant material.

If the accused wants to enter a guilty plea in the absence of full disclosure, counsel should explain that their assessment of the case is qualified to the extent that disclosure is incomplete and that the accused has a right to disclosure of the complete investigative file before moving forward with their plea. As Justice Di Luca states in R. v. Cherry, [2018] O.J. No. 4928 (S.C.J.) at para. 24:

…In many routine cases, initial disclosure provided for the purpose of a bail hearing can be a sufficient basis upon which counsel can form a tentative opinion about a case sufficient to advise a client on the plea — subject of course to a caveat that full disclosure could change counsel’s views. In cases where a client wishes to proceed and is prepared to admit the essential facts in support of the plea, counsel can assist in negotiating and entering a plea.

Understanding the Criminal Consequences of the Plea
Counsel must be satisfied that the accused understands that the next stage of the proceeding will be a sentencing hearing, having regard to:

-The imposition of a punishment by the Judge, with an associated record,

and

-Any applicable ancillary orders that the Judge may/shall impose, such as:

o A DNA order;
o A restitution order;
o A forfeiture order;
o A weapons prohibition order;
o A sex offender registration order;
o An order prohibiting or limiting contact with young persons;
o A driving prohibition order, and/or,
o A victim fine surcharge.

When discussing the sentencing process, counsel should be alert to the availability of resources that may be of assistance to the accused, including pre-sentence reports, Gladue reports for Indigenous clients, Impact of Race and Cultural Assessments for African Nova Scotians or Black clients, reports from the accused’s mental health professional or social worker or from advocacy organizations like the Canadian Mental Health Association, Inclusion Nova Scotia, and People First Nova Scotia.

Understanding the Legally Relevant Collateral Consequences of the Plea
In R. v. Wong, supra, the Court affirms that defence counsel must be satisfied that the accused understands the legally relevant collateral consequences that may flow from the sentence outside of the criminal justice process. The Court defines immigration consequences as a legally relevant collateral consequence (para. 4).

The Court declined to provide a closed list of other legally relevant consequences or their necessary prerequisites.

The Court directs practitioners to adopt a broad, rather than a narrow or restrictive, approach to the assessment of legally relevant secondary consequences (para. 9). The Court provides the following additional guidance:

  • “A legally relevant consequence is one which bears on sufficiently serious legal interests of the accused.” (para. 4); and
  • “…a legally relevant collateral consequence will typically be state-imposed, flow from conviction or sentence, and impact serious interests of the accused.” (para. 9).

It is important to remember that the type, duration and severity of sentence may be experienced differently depending on the accused’s personal circumstances. It is important for defence counsel to take these personal circumstances into account.

Understanding the Court is Not Bound by Any Agreement Made Between the Accused and the Prosecutor
Defence counsel must be satisfied that the accused understands that it is the Judge who makes the final decision with respect to the appropriate punishment and that the Judge is not bound by any agreement made between the accused and the prosecutor.

The accused is not permitted to withdraw their guilty plea and proceed to trial if they do not like the Judge’s decision with respect to punishment.

Cases to consider:
R. v. Anthony-Cook, 2016 SCC 43 – The leading case on joint submissions in Canada.

IV) THE FACTS SUPPORT THE ESSENTIAL ELEMENTS OF THE CHARGE
Defence counsel must be satisfied that the accused admits sufficient factual circumstances to support the essential elements of the charge.

As Justice Watt states, speaking for a unanimous Court of Appeal in R. v. D.M.G., 2011 ONCA 343 at para. 57, “…[t]o admit something is to accept it as valid or as true.”

It is permissible for counsel to assist an accused who admits facts in the absence of memory. If, for example, a third party witnesses the accused commit an offence, but the accused does not remember it, the accused can admit the offence even if the accused does not remember committing the offence.

It is not permissible for counsel to assist an accused who proclaims innocence yet wants to admit facts to the contrary.5

If the accused subsequently makes an application for parole, the National Parole Board will consider the admitted factual circumstances in deciding whether early release is appropriate.

The admitted factual circumstances may also be important with respect to related civil, immigration, family or other additional legal proceedings. Defence counsel should encourage the accused to seek independent legal advice if the circumstances warrant.

The scope of the factual admissions is often a subject of negotiation between defence counsel and the prosecution.

When the accused is tendering a plea of guilty it is a matter of good practice for defence counsel to alert the prosecution as to whether there are any factual circumstances that the accused is not prepared to admit. For example, the accused may be prepared to admit facts that support the essential elements of the charge, but deny other information that may be embarrassing or aggravating in nature. The prosecution will then be in a position to decide whether to call evidence to prove a contested fact and to ensure that sufficient time is set aside for the sentencing hearing.

Cases to consider:
R. v. Gardiner, [1982] S.C.J. No. 71 – The Crown must prove any disputed aggravating facts beyond a reasonable doubt at a sentencing hearing.

See also section 724(3) of the Criminal Code of Canada.

Best Practices

Prior to Court

Counsel should be mindful to ensure that the police have not overcharged in a way that might pressure the accused into accepting a plea bargain.6

Defence counsel must be alert to any communication barriers and arrange for an interpreter, if necessary.

Defence counsel must be mindful that an accused’s disability may be a potential barrier to meaningful communication.

Defence counsel must also be sensitive to cultural factors as potential barriers to meaningful communication. For example, Angela Bressan and Kyle Coady in “Guilty Pleas Among Indigenous People in Canada”, Research and Statistics Division, 2017, state at page 7:

“Indigenous people may have unique cultural considerations for pleading guilty, including language barriers and values around reconciliation and taking responsibility. The words ‘guilty’ and ‘innocent’ do not translate in many Indigenous languages, and one can interpret the question “How do you plead” guilty or not guilty?” as “Are you being blamed?”….Other cultural considerations include the Indigenous phenomenon of ‘gratuitous concurrence’, that is “when a person appears to assent to every proposition put to them even when they do not agree”…

Defence counsel may want to utilize a direction that includes the admitted factual circumstances when the accused wants to enter a plea of guilty.

A direction helps to avoid any misunderstanding between defence counsel and the accused.

A direction also adds a degree of solemnity to the process and serves to emphasize the serious nature of the course of action that the accused is contemplating.

Sample Direction

A sample direction is attached for defence counsel to draw upon when tailoring a direction specific to the accused’s case.

In Court
Defence counsel must be alert to any communication barriers and request an interpreter, when necessary, including in a circumstance where an accused has sensory impairments and needs an interpreter.

When the accused tenders a plea of guilty, the Judge may ask counsel: “Have you reviewed section 606(1.1) with your client?”

For ease of reference, section 606(1.1) states:

A court may accept a plea of guilty only if it is satisfied that the accused
(a) is making the plea voluntarily; and
(b) understands
(i) that the plea is an admission of the essential elements of the offence,
(ii) the nature and consequences of the plea, and
(iii) that the court is not bound by any agreement made between the accused and the prosecutor; and
(c) the facts support the charge.

It is a matter of good practice for defence counsel to request that the Judge confirm a guilty plea directly with the accused. As the Honourable Justice Richard A. Saull states:

….it is unwise for a plea to be made by counsel on behalf of the accused instead of by the accused himself. This simply invites the question that may arise during the course of the sentencing itself or at a later appeal of whether the accused actually intended to plead guilty. At this crucial stage of the criminal proceedings, with so much at stake, why would a judge allow counsel to conduct the inquiry in open court or to simply advise the court that the inquiry had already been made with their client? A few simple questions put to the accused by the court can go a long way to preventing a later suggestion that the accused’s plea was not properly taken. (Striking a Guilty Plea, National Criminal Law Program, Quebec City, Quebec, July, 2011, at page 3)

As Hill, J. states in R. v. Moser, [2002] O.J. No. 552 (S.C.J.) at para. 32:

…The accused’s personal entry of the plea is a factor tending to demonstrate the unequivocal character of the plea…

Additional Resources

Nova Scotia Public Prosecution Service – DPP Directive – “Resolution Discussions and Agreements”

Sample Direction
I understand that it is alleged that I have committed the following criminal offence:
(Offence) – (Date of Offence) – (Jurisdiction of Offence)

I have had an opportunity to review the disclosure materials.

[“At this time, I have only been able to consult with a lawyer based on a summary of the Crown’s evidence against me. I have a right to know in advance of the trial what evidence the Crown has against me and to wait for complete disclosure (the full file of all the evidence against me) to speak with a lawyer about the complete case. This could allow me to learn whether there are any weaknesses…in the Crown’s case against me or whether there are any defence(s) to this charge. I am giving up this right.” (Legal Aid Ontario Plea Comprehension Inquiry)

I have had sufficient time to consider all my options.

I understand that I have the right to a trial to contest the allegation.

I understand that at a trial the prosecution bears the burden of proving the charge against me beyond a reasonable doubt.

I understand that by entering a plea of guilty I am giving up my right to a trial.
I want to enter a plea of guilty.

I accept responsibility for committing the offence.

I admit the factual circumstances in the attached Agreement Statement of Facts.

I am making this decision to enter a plea of guilty voluntarily. No one is pressuring me or forcing me to plead guilty. I am entering a plea of guilty of my own free will.

I understand that by entering a plea of guilty I will have a criminal record of conviction in relation to this charge.

I understand that I will be eligible for a record suspension (formerly known as a pardon) _ years after I complete my sentence.
[or]
I understand that I will not be eligible for a record suspension (formerly known as a pardon) in relation to this conviction.

I understand that if the Judge grants a conditional discharge the criminal record of the discharge will remain accessible in a criminal record check for a period of three years from the date that the Judge grants the discharge.

I understand that if the Judge grants an absolute discharge the criminal record of the discharge will remain accessible in a criminal record check for a period of one year from the date that the Judge grants the discharge.

I understand that by pleading guilty I will receive a punishment to be determined by the Judge.

I understand that it is the Judge, not my lawyer and not the Crown Attorney, who determines the appropriate punishment. Stated differently, I understand that the Judge makes the final decision as to the appropriate punishment in my case.

I understand that the Judge will also impose the following (ancillary) orders at the time of sentencing: 1)…; 2); and 3)….

I understand that the Judge may impose the following (ancillary) orders at the time of sentencing: 1)…; 2); and 3)….

Footnotes

1 R. v. Wong, 2018 SCC 25 at para. 3; Criminal Code of Canada, s. 606 (1.1); Youth Criminal Justice Act s. 36; Nova Scotia Barristers’ Society, Code of Professional Conduct, Halifax: Nova Scotia Barristers’ Society, 2012: rule 5.1-8.

2 Wong, Ibid, at paras. 3 – 4.

3 For example, section 5.1-8 of the Nova Scotia Barristers’ Society, Code of Professional Conduct states “A lawyer for an accused or potential accused may enter into an agreement with the prosecutor about a guilty plea, if, following investigation, (a) the lawyer advises (their) client about the prospects for an acquittal or finding of guilt.”

4 For example, assessing psychological detention in the context of relations between the police and racialized communities (R. v. Le, 2019 SCC 34 at para. 75).

5 See Nova Scotia Barristers’ Society, Code of Professional Conduct, (Halifax, Nova Scotia Barristers’ Society, 2011) ch 5.1-7-5.1-8: The Lawyer as Advocate: Agreement on Guilty Plea https://nsbs.org/legal-profession/code-of-professional-conduct/chapter-5-relationship-to-the-administration-of-justice/#14-agreement-on-guilty-plea as well as ch 3.7-7 Withdrawal From Representation: Obligatory Withdrawal https://nsbs.org/legal-profession/code-of-professional-conduct/chapter-3-relationship-to-clients/#98-37-withdrawl-from-representation.

6 FOR MORE INFORMATION, SEE Canada, Federal/Provincial/Territorial Heads of Prosecutions Subcommittee on the Prevention of Wrongful Convictions, Innocence at Stake: The Need for Continued Vigilance to Prevent Wrongful Convictions in Canada, (Ottawa: Public Prosecution Service of Canada, 2018) at Chapter 8 – False Guilty Pleas online: https://www.ppsc-sppc.gc.ca/eng/pub/is-ip/ch8.html

Approved by Council on June 13, 2025.