"SOME THOUGHTS ON GUILTY PLEAS AND SENTENCING" ( ( )',~- These materials were prepared by Patrick Reis, of Saskatchewan Legal Aid Commission (Regina Rural Office) Regina, Saskatchewan for thesaskatchewan Legal Education Society Inc. seminar,criminal Law Essentials; May 2002.
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TABLE OF CONTENTS I. PREAMBLE - GUILTY PLEAS IN GENERAL II. III. IV. SPECIFIC SECTIONS OF THE CRIMINAL CODE OF CANADA PRACTICAL SUGGESTIONS (DO'S AND DON'TS) GLADUE, GLADUE, GLADUE
"SOME THOUGHTS ON GUILTY PLEAS AND SENTENCING" I. PREAMBLE - GUILTY PLEAS IN GENERAL IN THE WRITER'S VIEW SENTENCING IS INEXTRICABLE FROM ENTERING A! GUlLTY PLEA. AS SUCH, PRIOR TO ANY GUlLTY PLEA COUNSEL FOR THE DEFENCE MUST DIRECT THEIR ATTENTION TO ANY AND ALL POTENTIAL SENTENCES (AS DOES COUNSEL FOR THE CROWN AND THE POLICE). IN SO DIRECTING THEIR ATTENTION, DEFENCE COUNSEL MUST CONSIDER MANY FACTORS AND ATTEND TO CERTAIN TASKS, SUCH AS BUT NOT LIMITED TO: - REQUESTING, RECEIVING AND REVIEWING ALL DISCLOSURE PRIOR TO THE INITIAL INTERVIEW WITH THE ACCUSED; - INTERVIEWING CLIENT AND GATHERING OF ALL OF HIS/HER PERSONAL CIRCUMSTANCES (SEE GLADUE, INFRA); - REVIEWING DISCLOSURE AND THE PARTICULAR CIRCUMSTANCES OF THE OFFENCE AND CRIMINAL RECORD WITH THE ACCUSED; - DISCUSSING THE PLEA WITH THE ACCUSED, INCLUDING ANY AND ALL POTENTIAL SENTENCES (INCLUDING ALL DISCUSSIONS WITH THE CROWN OR POLICE OR FUTURE ONES); - RECEIVING FIRM INSTRUCTIONS FROM THE ACCUSED; - PREPARING THE ACCUSED FOR HIS/HER APPEARANCES IN COURT.
- 2 - ALSO PRIOR TO ENTERING A GUILTY PLEA DEFENCE COUNSEL MUST CONSIDER THE POSSIBILITY OF ALTERNATIVE MEASURES, ALL POTENTIAL DEFENCES THAT MAYBE AVAILABLE TO THE ACCUSED (AND POSSIBLE INCLUDED OR OTHER OFFENCES) AND DETERMINING WHETHER OR NOT THERE IS SUFFICIENT EVIDENCE TO SUPPORT A CONVICTION. II. SPECIFIC SECTIONS OF THE CRIMINAL CODE OF CANADA - SEE PART xxm OF THE CRIMINAL CODE (SENTENCING); - SECTION 717 ADDRESSES WHEN ALTERNATIVE MEASURES MAYBE USED; - SECTION 718 PRESCRIBES THE PURPOSE AND PRINCIPLES OF SENTENCING; - SECTION 718.1 STATES THAT A SENTENCE MUST BE PROPORTIONATE TO THE GRAVITY OF THE OFFENCE AND THE DEGREE OF RESPONSIBILITY OF THE OFFENDER; - SECTION 718.2 SPEAKS TO OTHER SENTENCING PRINCIPLES THAT THE COURT SHALL TAKE INTO CONSIDERATION, INCLUDING AGGRAVATING OR MITIGATING CIRCUMSTANCES; - COUNSEL SHOULD PAY PARTICULAR ATTENTION TO SUBSECTIONS (d) AND (e) ESPECIALLY "WITH PARTICULAR ATTENTION TO THE CIRCUMSTANCES OF ABORIGINAL OFFENDERS"; - SECTION 718.3 (1) PRESCRIBES THAT SENTENCING IS IN THE DISCRETION OF THE COURT SUBJECT TO MINIMUM PENALTIES (AND OF COURSE SUBJECT TO APPEALS);
3 COUNSEL SHOULD ALSO UTILIZE PRE-SENTENCE REPORTS (AND PRE-DISPOSITION REPORTS FOR YOUNG OFFENDERS) AND KEEP IN MIND VICTIM IMPACT STATEMENTS (SEE SECTIONS 721 AND 722). SECTION 723 IS IMPORTANT (ON THE SUBMISSION OF FACTS), WHICH ALLOWS FOR THE ADMISSABILITY OF HERESAY EVIDENCE. ALSO SEE SECTION 724; - SECTION 730 SPEAKS TO CONDITIONAL AND ABSOLUTE DISCHARGES (ALSO SEE SECTION 731 WITH RESPECT TO PROBATION ORDERS); - SECTION 734 CODIFIES THE POWER OF THE COURT TO IMPOSE FINES; - SECTION 738 SPEAKS TO RESTITUTION TO VICTIMS OF OFFENCES; SECTION 742.1 IS A VERY IMPORTANT SECTION AND AUTHORIZES THE COURT TO MAKE AN ORDER FOR A CONDITIONAL SENTENCE. IN SEVERAL CASES, THE SUPREME COURT OF CANADA HAS CONSIDERED THE PRINCIPLES TO BE APPLIED UNDER THIS SECTION. THE LEAD JUDGMENT WAS GIVEN IN R. v. PROULX, 1200Qj1.s.c.R. 61,140 c.c.c. (3d) 449,30 C. R. (5 TH ) 1; ALSO SEE THE DISSENTING JUDGMENT OF VANCISE, J. A. IN.R. v. MCDONALDU99714 W.W.R. 318.; SECTION 743.1 PRESCRIBES IMPRISONMENT FOR LIFE OR MORE THAN 2 YEARS (IMPRISONMENT IN A PENITENTIARY); - ACCORDING TO SECTION 743.6 THE COURT MAY DELAY PAROLE. THIS SECTION IS PARTICULARLY IMPORTANT FOR MANSLAUGHTER SENTENCES
4 (ALSO SEE SECTION 745.4 - LENGTH OF IMPRISONMENT WITHOUT ELIGIBILITY FOR THE OFFENCE OF SECOND DEGREE MURDER); - COUNSEL SHOULD ALWAYS PAY ATTENTION TO THE POSSIBILITY OF A DANGEROUS OFFENDER OR LONG-TERM OFFENDER APPLICATION BY THE CROWN, (SEE SECTIONS 752, 753 AND 759 (APPEALS»; COUNSEL SHOULD BE EVER MINDFUL OF THE MENTAL DISORDER PROVISIONS OF THE CRIMINAL CODE (PART XX.I). ALSO KEEP IN MIND SECTION 687 WHICH PRESCRIBES THE POWERS OF THE COURT ON APPEAL AGAINST SENTENCE; III. PRACTICAL SUGGESTIONS (DO'S AND DON'TS) 1. DO'S - ALWAYS CONSIDER INCLUDED OR OTHER LESSER OFFENCES; - ATTEMPT TO LIMIT AGGRAVATING FACTS AND FACTORS (I.E. AVOID SENTENCING HEARINGS); - CONSIDER THE ROLE OF THE ACCUSED IN THE OFFENCE; - GATHER SENTENCING MATERIALS SUCH AS LETTERS OF PREVIOUS GOOD CHARACTER; - ALWAYS CONSIDER THE EFFECT OF A GUILTY PLEA AND SENTENCING ON THE ACCUSED'S EMPLOYMENT AND FAMILY SITUATION;
5 - FIND OUT WHAT IS AVAIl.ABLE FOR YOUR CLIENT IN TERMS OF HIS OR HER ADDICTIONS; - ALWAYS CONSIDER EXTENUATING CIRCUMSTANCES WHICH MAY NOT PROVIDE A DEFENCE BUT MITIGATE SENTENCE; - KEEP IN MIND PLEA DISCUSSIONS AND AGREEMENTS (JOINT SUBMISSIONS); - WATCH FOR SENTENCING SURPRISES, IN PARTICULAR POTENTIAL DANGEROUS OFFENDER OR LONG TERM OFFENDER APPUCATIONS BY THE CROWN; - ALWAYS KEEP IN MIND POTENTIAL MINIMUM PENALTIES; - GET WRITTEN INSTRUCTIONS IN VERY SERIOUS OR CONTENTIOUS MATTERS (OCCASIONALLY A CLIENT CAN TURN ON COUNSEL IN A HEARTBEAT); - KNOW THE JUDGES YOU WILL APPEAR BEFORE AND HOW THEY FEEL ABOUT PARTICULAR OFFENCES; - USE YOUR CLIENT'S SUPPORT SYSTEMS, SUCH AS EMPLOYERS, FAMILY, FRIENDS, BANDS, NADAP WORKERS, COUNCILLORS AND ELDERS; - KNOW YOUR PROBATION OFFICERS AND YOUTH COURT WORKERS SO THAT YOU MAY DETERMINE WHEN A PRE-SENTENCE REPORT OR PRE DISPOSITION REPORT MAY BE OF ASSISTANCE TO THE ACCUSED (ESPECIALLY IN CIRCUMSTANCES WHICH MAY CALL FOR A CONDITIONAL SENTENCE OR A CUSTODIAL DISPOSITION);
6 - KEEP IN MIND THE POSSIBll.JTY OF SENTENCING CIRCLES OR HEAUNG CIRCLES FOR ABORIGINAL OFFENDERS; - ALWAYS TRY TO UNDERSTAND WHAT WENT WRONG FOR THE ACCUSED (WHY THE OFFENCE HAPPENED FROM HIS/HER POINT OF VIEW) AND HOW FURTHER PROBLEMS MAYBE CORRECTED AND AVOIDED. 2. DON'TS NEVER GUARANTEE A SENTENCE; - DON'T ENTER A GUILTY PLEA AND THEN BRING UP A DEFENCE; - DON'T PRESSURE ACCUSED INTO A GUILTY PLEA (IT MUST BE "VOLUNTARY"); DON'T ENTER A GUILTY PLEA ON HAZY OR IMPLIED INSTRUCTIONS (THE GUILTY PLEA MUST BE "EXPRESS") - SOMETIMES WRITTEN INSTRUCTIONS ARE REQUIRED; DON'T ENTER A GUILTY PLEA UNLESS THE CLIENT IS ADMITTING THE OFFENCE, SUBJECT TO A COUPLE OF EXCEPTIONS THAT WILL BE DISCUSSED AT THE ORAL PRESENTATION; DON'T ADVANCE UNREALISTIC OR UNREASONABLE SENTENCING FACTORS, MAINTAIN YOUR CREDIBILITY WITH THE COURT, THE CROWN AND THE PUBLIC AT LARGE; - DON'T FORGET OTHER RAMIFICATIONS FOR THE ACCUSED SUCH AS DRIVING PROHIBITIONS, FIREARMS PROHIBITIONS AND DNA ORDERS;
IV. GLADUE, GLADUE, GLADUE - 7 - - READ R..v. GLADUE fi992js. C. J. NO. 19 (S.c.c.); - GLADUE ALTERS THE METHOD OF ANALYSIS:FOR THE COURT IN ACHIEVING A FAIR AND JUST SENTENCE (IN PARTICULAR, SEE SECTION 718.2 (e»; - GATHER THE INFORMATION THAT GLADUE REQUIRES OF DEFENCE COUNSEL.