Pleading guilty | David Dorson

Lately we have been hearing a lot about wrongful convictions. The federal government finally, after 30 years of reports and many horrible examples of people spending decades in prison for crimes they did not commit, is setting up a mechanism to allow investigation of cases where the justice system may have got it wrong. The new system still doesn’t go far enough but it is better than the complete lack of process we had before.

It turns out that quite a few of the people exonerated of very serious charges actually pleaded guilty to those charges. Why would someone plead guilty to something they did not do? I can provide some answers to that based on my own experience. My lawyers told me that I had a good case and might have been able to win at trial, yet in the end I pleaded guilty. Why?

First — and this is standard practice — Crown prosecutors will offer a lighter sentence if you plead guilty. If you insist on going to trial, the Crown will ask for a much harsher sentence. This trade-off is widely accepted by our courts. In effect, those charged are told that if you refuse to give up your right to a fair trial, we will punish you more severely. 

We do it this way because our system could not cope if most people facing a criminal charge had a trial. Even with only 10 per cent of cases going to trial the system is badly backlogged. Cases are regularly tossed for taking more than two years. What would happen if 50 per cent of those accused insisted on going to trial? The system would collapse entirely. We keep the system going by coercing people into pleading guilty. This is a shameful violation of a basic human right — to make a fair defence to a criminal charge.

Keep in mind, also, the context in which this trade of a lesser sentence for a guilty plea is offered. A defendant has to pay for her or his own defence, a cost that easily runs into tens of thousands of dollars even for a minor charge, while Crown attorneys and police are paid by the public. (This is not an attack on defence lawyers’ fees; lawyers are entitled to earn a reasonable income and many of them donate a lot of time for which they don’t get paid.) 

To get legal aid, even for serious criminal matters, you have to be essentially destitute. In my journey through the system I met many people who had simply run out of money to pay a lawyer, even after, for example, selling their house or cashing in all their savings. Very few Canadians have an extra $50,000 or $100,000 (and my legal fees were much more than that) to devote to their defence, especially given that those criminally charged are disproportionately lower income. In reality, quite a few people plead guilty because they cannot afford to defend themselves properly. 

Time is another major factor leading to guilty pleas. The most recent data (from 2015-16) is that half of all criminal cases took more than four months to resolve, and that six per cent took more than 18 months. During that time, many people — more than 20,000 in a typical day in Canada– are being held in jail. This means they may lose their jobs, or housing or be cut off from their families. If the Crown offers to release you from jail if you plead guilty, there is a very strong incentive to take that offer, even if you know you are not guilty. As it is, about 30 per cent of all criminal charges in Canada are stayed or withdrawn, causing problems for more than 100,000 people a year. I know one person who was held in jail for over a year only to have the charges dropped shortly before the trial was to start. 

Very few people understand at that point the severe long-term implications of having a criminal record, something they will come to appreciate only later, so the temptation to take the deal and get out of jail is high.

But even if you are not in jail, the uncertainty of waiting months for a resolution takes a toll not only on those accused but on their families. People may lose their jobs — as I did. Their spouses, children and other family members may be vilified — as happened in my case. On bail I was subject to a whole string of conditions that assumed I was guilty and that seriously limited how I could live. Your family may have to supervise you, never a good situation. And this can go on for months or even years.

Then there is the prospect of a trial, which involves the Crown trying to make you look as bad as possible using whatever tactics it can to do so, all of which may be widely reported in the media. Even if you are acquitted, the damage to you and those you care about can be considerable. In fact, very few people who are acquitted recover fully from a serious criminal charge. Nor is there any recompense if you have your charges dropped or are acquitted. 

My lawyer thought we had a strong argument that police had committed an illegal search which, if true, would have led to the charges being thrown out. Yet, they told me, I could only make this case at trial, which meant the prosecution would make its full case against me in a very public way. Making a Charter argument could take another year and cost another big chunk of money. And, I was told, it was quite common for a judge, even while accepting that there had been a violation of rights, to allow the evidence. If that happened, it would require an appeal — another year of uncertainty and yet another large cost. 

So there I was, my life severely curtailed, my family suffering, legal bills mounting rapidly, month after month going by. After discussion with my lawyer and my family we decided that a guilty plea was the best option taking everything into account.

Looking back, I am not sure that was the best decision. The consequences of my guilty plea are substantial and will last the rest of my life. But I’m not sure it was a bad decision either. The reality is that once you are charged, you are in a very vulnerable position and you (and those who care about you) are going to suffer whatever path you take.   

David Dorson is the pen name of someone who went through arrest, case disposition, imprisonment and parole in Ontario a few years ago. Law360 Canada has granted anonymity because he offers a unique perspective on a subject that matters deeply to many readers, and revealing the author’s identity would make re-establishment in the community after serving his sentence much more difficult than it already is.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author's firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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