Protecting the Right of Appeal: The Problem with Pleading Guilty

An accused is prohibited from appealing an interlocutory ruling, such as a ruling relating to the admissibility of evidence. Instead, the accused is obliged to wait until the end of his trial before he can have the ruling challenged in an appeal.

However, a plea of guilty is a bar to re-litigation of interlocutory rulings unless the plea of guilty can be set aside on some basis. [FN1]

See for instance R. v. Faulkner, 2018 ONCA 174 (CanLII), at para. 101;

R. v. Chuhaniuk, 2010 BCCA 403, at paras. 46-49.

Where the validity of the plea is raised for the first time on appeal, the appellant has the onus of showing that the plea was invalid. [FN2] Thus, the guilty plea of the accused will impose an additional and sometimes insurmountable obstacle on appeal. 

Where the success or failure of the case for the Crown depends on the result of pre-trial motions, there may be good reason for an accused to plead guilty if unsuccessful on those motions.  Doing so spares valuable and limited court resources where it is clear that the admissibility of the evidence is dispositive of guilt.  It may also spare a complainant and others from having to give evidence and from being challenged on that evidence. A guilty plea is usually considered by the sentencing judge as an expression of remorse. By expressing finality to the conviction process, it invites leniency in the sentencing portion of the trial. Additionally, it expedites appellate review.

The problem with entering a guilty plea is in preserving the accused’s right to challenge the correctness of a pre-trial ruling.  There is no such thing as a conditional plea of guilty whereby, for instance, an accused’s plea of guilty is made conditional on the appellate court upholding the validity of the trial judge's ruling.

In R. v. Fegan, 1993 CanLII 8607 (ON CA), the Court of Appeal for Ontario contemplates a “work-around” option following a ruling on the interlocutory matter, whereby the parties fashion a procedure in which guilty pleas are dispensed with, and the foundation for the case is established by way of an agreed statement of facts. Some points to note:

·        Not every case will be suited to the vehicle of an agreed statement of facts. In those instances, it is likely the accused (given that it is clear that the admissibility of the evidence is dispositive of guilt) will be able to make admissions encompassing sufficient facts to sustain a conviction. [FN3]

·     Differences with the Crown as to the degree of culpability usually relate to sentencing and can be settled by evidence in that portion of the trial.

·      If the accused wishes to obtain the advantage from the Crown and the court of an agreement that effectively reduces the court docket, the reasons for the accused's declining to plead guilty can be explained to the court.

This procedure preserves the accused’s right of appeal against conviction on the real issue in dispute without imposing the additional burden of setting aside the guilty plea.

Written by Stuart O’Connell (Barrister & Solicitor)

[FN] In pleading guilty an accused admits having done that with which he is charged. Having pleaded guilty, the accused must obtain leave from the court of appeal to withdraw the plea or to have it exercise its jurisdiction under s. 686(1)( a)(iii) of the Code and allow the appeal, notwithstanding the plea, if it is satisfied that the convictions should be set aside on the ground that there was a miscarriage of justice.

[FN2] For the plea to be valid, it must be made voluntarily and unequivocally. The plea must also be an informed one, in the sense that the accused must be aware of the nature of the allegations made against him and of the effect and the consequences of his plea.

[FN3] Section 655 of the Criminal Code permits the accused or his counsel to "admit any fact alleged against him for the purpose of dispensing with proof thereof".