Why You Always Have 2 But Not 3 Choices When Charged With a Criminal Offence

Really all forms of court litigation, criminal charges included, have two choices: (1) voluntarily settle to take your case out of the court system, or (2) proceed to trial to let a third party decision maker like a judge decide your case for you. When you settle, the result is within your control. When you proceed to trial, the result is out of your hands.

Proceeding to trial may occasionally have the prospect of a much better result than settling a criminal case: complete exoneration. But it usually comes with the risk of a far worse result: being convicted of everything you’re accused of, and receiving a far harsher sentence. So that instead of being required to plead guilty to one charge for a fine if you settle, after trial you may risk being convicted of four charges resulting in the sentencing judge imposing 60 days custody in jail as a worst case result.

Proceeding to trial means you roll the dice. Maybe you get a better result. Maybe you get a worse result. Only your lawyer can advise you on your prospects of success at trial, after carefully evaluating all of the evidence against you that has been disclosed.

But you’ll always have those two choices: (1) resolve your case on some kind of negotiated terms with the prosector, or (2) go to trial. You’re never forced to plead guilty. Your lawyer won’t ethically be able to even help you with a plea if you tell her: “I’m not guilty, I didn’t do it, but I’m going to plead to get it over with.”

If you truly did nothing, you should be proceeding to trial, as much as you want to get things over with. Though I find for those facing multiple charges, sometimes there could be legitimate minor wrongdoing that might be admitted to, in exchange for the Crown dropping more major charges. If there isn’t, your lawyer should continue to attempt to wear down the Crown through additional Crown Pre-Trials and Judicial Pre-Trials (where a judge also offers his opinion on your case) to hopefully make the case go away, and in the alternative prepare to run a trial (which likely happens in under 5% of criminal cases).

However, it’s very important to remember when facing criminal charges that there is no third choice other than (1) resolving on negotiated terms, or (2) proceeding to trial. If, for example, your lawyer tells you she’s negotiated the best deal achievable for you where the Crown will drop a bunch of charges, in exchange for a plea and minor penalty, you’ll still have those two options: accept the deal and plead guilty, or proceed to set a trial date as nothing short of full exoneration will be justice to you.

Your lawyer will accept and respect either choice from you. You’ll always have that right to proceed to trial.

But you can’t demand a third choice of refusing to proceed to trial and refusing to accept the deal painstakingly negotiated for you after months of discussions, simply because you believe you deserve a better deal, or because the deal negotiated will cause you hardship (because of the size of the fine, the length of a driving prohibition, the imposition of a criminal record). All those results can be avoided by proceeding to trial. But that is your only second choice. There isn’t a third choice (short of firing your lawyer and either representing yourself or hiring a new lawyer).

You can’t refuse a trial, and refuse a plea. Refusal of both will mean you’ve effectively chosen to proceed to trial - whether you want to or not - and a court will set a trial date for you.

I often tell clients, far better you regret proceeding to trial, than you regret taking a plea deal you’re not comfortable with. However, going to trial inherently comes with lots of risks, including that you need to be able to pay the extra legal fees for the trial, that the case could take another year or more to be over with, and that you run the risk of a far worse outcome than was possible on a plea deal.

Carefully consider those two crucial options you have available to you. Ask your lawyer lots of questions about them. Then choose between them. It may be a painful choice, but it’s a choice that needs to be made if you’re facing a criminal charge.

Refusing to choose means you’re going to trial. And refusing either a trial or a plea may mean your lawyer needs to withdraw from your case, because you’ve lost confidence in her advice. You always have two choices but usually not three choices when charges with a criminal offence.

Gordon S. Campbell defends those charged with criminal and regulatory offences throughout Ontario at all levels of trial and appellate courts. Learn more at www.defenceeast.com.