can you change your plea?
can you change your plea?
Nov 17, 2018
Many people charged with criminal offences decide to plead guilty for a variety of reasons. The Crown may have offered them a lighter sentence if they plead guilty; they might have wanted to spare their loved ones from having to testify; they may not have been able to afford a lawyer or qualified for legal aid and, therefore, not felt they were in a position to have a trial; or most commonly, they may have simply been guilty and wanted to take responsibility. However, often after a guilty plea is entered in court, there is some delay (of weeks or even months), before the person is sentenced. It is during that delay between a guilty plea and sentencing that an accused will often second guess their decision.
Can You Change Your Plea After Pleading Guilty?
If you are one of those individuals wondering “is it too late to change my plea?” you will recall when you entered your guilty plea, your lawyer and/or the court would have asked you the following questions:
- Do you understand the charges against you? You would have answered, “Yes.”
- Do you understand that by pleading guilty, you are waiving your right to a trial? You would have answered, “Yes.”
- Is anybody forcing you to plead guilty? You would have answered “No.”
- Do you understand that regardless of the sentence being recommended by the Crown and/or defence, it will ultimately be up to the judge what sentence you receive? You would have answered, “Yes.”
By going through those questions with you, your lawyer and/or the court were making sure that your guilty plea was voluntary, informed, and unequivocal. If the court had any concerns about your plea being pressured, uninformed, or fickle, you would not have been permitted to plead guilty.
So, what if you change your mind? In order to successfully apply to withdraw your guilty plea, you must prove to the court that your plea was either involuntary, uninformed, or equivocal. In my 5 short years of practice, I have seen each of those three arguments be successful. And there is new law as of 2018 which is binding on all courts, which tends to lower the bar. So, while a guilty plea is supposed to be final, and you have no doubt been warned many times that you cannot change your mind once the plea is in, that isn’t exactly true in practice.
1. The Plea Was Not Voluntary
I was involved in a Manitoba Queen’s Bench case where this argument was made on an application to withdraw a guilty plea to 2nd degree murder. The applicant, in that case, took the stand and testified that he was threatened by rival gang members while in custody, and forced to plead guilty under the threat of violence. The court accepted his evidence and allowed him to withdraw the plea. He proceeded to a trial.
2. The Plea Was Not Informed
I am currently involved in a BC Provincial Court case where we are making this argument. My client entered a guilty plea to sexual interference, and the sentencing was put over several months. Several witnesses came forward between the time of the plea and the sentencing and provided new statements to police, including new information. My client will be testifying to the court that had she had all the evidence to consider before she entered her plea, she would have proceeded to trial. The new case law in this area supports our position.
3. The Plea Was Equivocal
This argument is appropriate in a case where you can point to the court record to show that when you entered your guilty plea, you did not fully commit to being guilty of the charges. There is recent BC case law considering this argument in which the applicant was successful in withdrawing his guilty plea because he explained that he was suffering from depression and suicidal ideations when he entered his guilty plea, and that when you read the transcript, it was clear that he was not fully committing to being guilty but was conveying a tone of having given up on fighting. His plea was found to have been equivocal.
You will notice that in none of these scenarios was the accused asserting they were not guilty. You do not have to be innocent in order to apply to withdraw your plea. You may in fact be totally guilty of the charges laid. That is not the point. The point is that you have the right to understand the case against you, make full answer and defence, and determine whether or not the Crown can prove their case before you commit to a plea. You have these rights regardless of your guilt or innocence.
In most cases, you will have to find a new lawyer to assist you with any of these three applications to withdraw your plea. The reason is that the court will want to question your lawyer about whether your lawyer believed, based on your discussions with him or her about the plea, that your plea was voluntary, informed, and unequivocal. In fact, you may have a basis to withdraw your plea if your lawyer did not adequately assist you in the process. For example, if your lawyer pressured you into pleading guilty, your plea might be involuntary. Or, if your lawyer did not tell you about important evidence or consequences in your case, your plea may have been uninformed.
Can You Change Your Plea After Pleading Guilty? Call Filkow Law
Accordingly, the short answer is no; it is not necessarily too late. While you are not allowed to simply “change your mind,” your guilty plea may fall into one of the three categories described. Skillful counsel will be able to assess your situation and help you understand your rights regarding your plea. With extensive experience dealing with these types of applications, our lawyers are happy to assist. If you have entered a guilty plea but are having second thoughts as your sentencing date approaches, do not hesitate to give us a call.