The decision how to plead is one of the most imporant that a defendant will make in a criminal matter. Even with excellent legal advice, he or she may be torn as to the proper plea. Should he or she plead guilty and receive the benefit of a more lenient sentence for doing so? Or should he or she run a trial and risk the associated cost in terms of time, money and possibly a harsher punishment if convicted? Given the difficulty of the decision, it is not surprising that a defendant sometimes seeks to retract or "strike" a guilty plea. Courts are wary of striking pleas, and only do so if the defendant can prove that the plea was not voluntary, unequivocal or informed, or there is some other valid reason for expunging the plea.
R. v. Harmon, a June 28 decision of the Saskatchewan Provincial Court, provides a good example of a defendant wrestling with the decision whether to plead guilty. He initially agreed to do so, but the night before the guilty plea was to be entered told his lawyer that he had changed his mind. The lawyer indicated that it was a little late in the day to be doing so, given that arrangements had already been made with the prosecutor. A guilty plea was entered the next day, and the sentencing was adjourned. Outside of court, the defendant again expressed to his lawyer a desire to plead not guilty. The lawyer said that if he wished to do so they should reattend court immediately, and that a new lawyer would have to act on the application to strike the plea. The defendant took no action until several months later, when he appeared with a new lawyer and sought to expunge the plea prior to sentencing.
The judge in Harmon accepted the defendant's testimony that, despite having prior experience with the criminal justice system, including a conviction for a similar offence, he did not fully understand the process at the time of the plea. The plea was therefore not voluntary or fully informed. The failure to speak up in court at the time the plea was entered, or to return to court immediately thereafter as his lawyer had suggested during their post-plea discussion, merely reflected the "perfectly logical responses of an individual who simply did not know what to do to address his concerns".
The result in Harmon is not one that all other judges would necessarily reach. Second thoughts about the decision to plead guilty, whether occurring before or after the plea is taken, are not enough to strike the plea. But the judge found as a fact that the the defendant was truly confused about the process and did not intend to plead guilty. This factul finding certainly justifies the decision to strike the plea.
Harmon underlines an important lesson for counsel dealing with clients who equivocate about how to plead. The decision is the client's alone. The lawyer can give advice, sometimes in strong terms, but that is all. If the client is equivocal the lawyer should not proceed with the plea. If equivocation is expressed, and after further discussion the client's doubts are dispelled and he or she makes a final decision, counsel should obtain instructions in writing or, at the very least, make detailed notes setting out the conversation. Doing so ensures that any subsequent issue as to the validity of the plea can be resolved based on a full and fair record of events.
A final note. Section 606(1.1) of the Criminal Code encourages, but does not require, judges to make a few simple enquiries of an accused in order to ensure that a guilty plea is voluntary, unequivocal and informed. More and more judges are taking up this suggestion, and wisely. A "colloquy", as this process is referred to in U.S. law, prevents bad guilty pleas before they happen, saving the time and expense of an application to strike the plea. And, because a transcript of the exchange is kept, the process strongly discourages a defendant who enters a voluntary and fully informed plead from bringing an unmeritorious application to strike.
To read the Harmon judgment click here.
