Thinking of pleading guilty in Ontario: what happens at a plea hearing, and what cannot be undone?

At a plea hearing the charge is read, you plead guilty, the Crown reads a summary of the facts, and the judge checks that the plea is voluntary and that you understand it before accepting it. An accepted plea admits the essential elements of the offence, gives up your trial and leads to a finding of guilt and a sentence. The judge is not bound by any deal with the Crown, but may reject a joint submission only in narrow circumstances.

The Ontario Court of Justice lists the ways a case can be resolved without a trial as a withdrawal, diversion or a guilty plea, and only the plea ends with a finding that you committed the offence. This page, part of our guides to criminal defence in Ontario, explains the hearing, how a joint submission works, and which consequences stay with you.

How does a plea hearing work, step by step?

1. Resolution discussions. The Crown's position often appears first on the Charge Screening Form in your disclosure, which the court says may show the sentence the Crown would seek if you plead guilty. It is then discussed with the Crown and, often, before a judge at a judicial pre-trial.
2. A plea date is set. The court's guide says no guilty pleas are taken in case management court, and some locations require the plea date to be booked in advance. In Toronto, the court lists dedicated plea courtrooms for the courthouse at 10 Armoury Street, with Zoom details on its location page.
3. Arraignment. The clerk or judge reads the charge and asks how you plead. An accused may plead guilty, not guilty or one of the special pleas the Criminal Code allows, and if you refuse to plead the court enters a plea of not guilty (s. 606(1) and (2)).
4. The facts. The Crown reads a summary of the facts, which Legal Aid Ontario calls the synopsis, and the judge asks whether you agree with it. Legal Aid's guide is plain: if you do not agree with the facts, you cannot plead guilty, and a trial date will be set.
5. The plea inquiry. The judge asks questions to confirm the conditions in section 606(1.1), set out below, and may refuse a plea that does not meet them.
6. Finding of guilt and sentencing. Once the plea is accepted, you are found guilty. The judge may sentence you the same day or adjourn, for example to obtain a pre-sentence report or a victim impact statement. Both sides make submissions, and then the judge imposes the sentence.

In serious cases there is one more step. Where the plea follows an agreement with the Crown on a charge of murder or a serious personal injury offence, or on another indictable offence with a maximum of five years or more where a victim asked to be told, the court must ask the Crown about informing the victims (s. 606(4.1) and (4.2)). A failure at this step does not affect the validity of the plea (s. 606(4.4)).

What must the judge be satisfied of before accepting the plea?

The last row is the reason to be ready before you walk in. The judge's questions are a check, not a briefing: the real protection is a full conversation with your lawyer beforehand.

What is a joint submission, and does the judge have to follow it?

A joint submission is a sentence the Crown and the defence recommend together, usually in exchange for the guilty plea. In R. v. Anthony-Cook, 2016 SCC 43, the Supreme Court of Canada held that a trial judge should not depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest (para. 32). The Court called this an "undeniably high threshold" (para. 34). Rejection is reserved for a sentence so far removed from the circumstances that reasonable and informed people would think the justice system had stopped functioning properly.

The Court also explained how a judge should handle a joint submission:

• As it is. If the parties did not ask for an order such as probation, the judge should assume it was considered and left out, although a mandatory order cannot be omitted (para. 51).
• In both directions. The same test applies whether the judge is considering a harsher or a more lenient sentence (para. 52).
• With context. The judge may ask what led to the agreement, including what the Crown gained and what the accused conceded (para. 53).
• With notice. A judge with concerns should tell counsel and invite further submissions, including on whether the accused should be allowed to withdraw the plea (para. 58).
• With reasons. A judge who still departs from the joint submission must give clear and cogent reasons (para. 60).

The Court said its reasons do not address agreements where the parties only partly agree on the sentence, such as an agreed range. If your deal is a range, ask your lawyer how much room the judge has.

What does a guilty plea lead to, and what cannot be undone?

The plea is an admission, and it gives up the chance to test the Crown's evidence at trial. After the finding of guilt, the court's guide says the sentence may be a discharge, a fine, probation, jail or a combination, and the judge may add orders such as a DNA sample order, a firearms prohibition or a driving prohibition. The sentence is guided by the purposes and principles in sections 718 to 718.2, and it must be proportionate to the gravity of the offence and your degree of responsibility (s. 718.1).

A discharge is the one result after a guilty plea that avoids a conviction. Instead of convicting you, the court may discharge you absolutely or on the conditions of a probation order, if that is in your best interests and not contrary to the public interest (s. 730(1)). It is not available for an offence with a minimum punishment or one punishable by 14 years or life. A discharged offender is deemed not to have been convicted (s. 730(3)). But if you are convicted of a new offence while on the probation that comes with a conditional discharge, the court can revoke the discharge, convict you of the original offence and sentence you for it (s. 730(4)). Our page on probation orders in Ontario explains those conditions.

Any other sentence follows a conviction, which stays on your record until you obtain a record suspension. Our page on the waiting period for a record suspension explains when you can apply. If you are not a Canadian citizen, the plea can also affect your status: read how a conviction can affect permanent resident status, and get advice from an immigration lawyer before the plea date, not after it.

A plea is not always to the charge as laid. With the Crown's consent, the court may accept a plea of guilty to another offence arising out of the same transaction, whether or not it is an included offence, and then find you not guilty of the original charge (s. 606(4)).

Can a guilty plea be taken back?

Plan as if it cannot. Section 606, which governs pleas, contains no provision for withdrawing one. In Anthony-Cook, the Supreme Court said that if a judge's concerns about a joint submission are not resolved, the judge may allow the accused to apply to withdraw the plea, but it left open the circumstances in which a plea may be withdrawn (para. 59). The one example it gave is a fundamental error by counsel about the legality of the proposed sentence, such as proposing a conditional sentence that is not available. Our page on conditional sentences in Ontario explains when one is possible.

Nor is the plea inquiry a safety net: a judge's failure to fully inquire does not affect the plea's validity (s. 606(1.2)). If you believe a conviction is wrong after a plea, act quickly, because the deadline to appeal a criminal conviction is short.

How is a guilty plea different from diversion or a peace bond?

Both end the case without a plea of guilty. In diversion in Toronto, you complete agreed work such as counselling, and the court's guide says the Crown then withdraws or stays the charges. A peace bond under section 810 is an order to keep the peace and be of good behaviour for up to 12 months, made because another person has reasonable grounds to fear harm (s. 810(3)). Our page on peace bonds and restraining orders explains how a peace bond differs from other orders.

For what each result leaves behind, see our comparison of withdrawals, peace bonds, discharges and convictions.

What changes the answer?

• Whether a discharge is possible. Not for an offence with a minimum punishment or a maximum of 14 years or life (s. 730(1)).
• How the Crown proceeds. On a summary conviction, unless another law says otherwise, the maximum is a $5,000 fine, two years less a day in jail, or both (s. 787(1)). Our page on the Crown's summary or indictable choice explains the rest.
• Joint or contested sentencing. Only a joint submission has the protection of the public interest test (Anthony-Cook, para. 32).
• Aggravating factors. The Code deems some circumstances aggravating, such as abuse of an intimate partner, abuse of a person under 18, or abuse of a position of trust (s. 718.2(a)(ii), (ii.1) and (iii)).
• Restraint. You should not be deprived of liberty if less restrictive sanctions may be appropriate, and all reasonable alternatives to jail must be considered (s. 718.2(d) and (e)).

A worked example

For example, Arash is 34, works in logistics in North York and is a permanent resident. He is charged with theft under $5,000 after an incident at a store in Scarborough, and the Crown proceeds summarily. At a judicial pre-trial, the Crown offers a joint submission for a conditional discharge with 12 months of probation if he pleads guilty. Before agreeing, his lawyer reviews the disclosure with him in Farsi, confirms he accepts the Crown's facts, and refers him to an immigration lawyer.

On the plea date, in a plea courtroom at 10 Armoury Street, the charge is read, Arash pleads guilty and the Crown reads the synopsis. He agrees with it. The judge asks whether anyone pressured him, whether he understands he is admitting the offence and giving up a trial, and whether he knows the court is not bound by the deal, then accepts the plea and the joint submission. Because it is a discharge, Arash is deemed not convicted (s. 730(3)), but for the next 12 months a new conviction could lead the court to revoke the discharge and convict him of the theft (s. 730(4)). This is a hypothetical illustration, not a prediction of how any judge would decide a real case.

What mistakes do people make?

1. Deciding before reading the disclosure. Legal Aid Ontario says it is very important to read your disclosure before deciding whether to plead guilty.
2. Agreeing to facts they dispute. If you do not agree with the Crown's facts, you cannot plead guilty to them. Raise every disagreement before the plea date, not in the courtroom.
3. Treating the deal as certain. The court is not bound by any agreement (s. 606(1.1)(b)(iii)), even though a joint submission is hard to reject.
4. Leaving status questions until after. Immigration consequences belong in the decision, not the aftermath.
5. Treating a conditional discharge as the end of it. A new conviction during the probation period can turn the discharge into a conviction (s. 730(4)).
6. Assuming the plea can be withdrawn later. The Supreme Court left the circumstances open, and section 606 sets out no withdrawal procedure.

What to do this week

1. Get and read your full disclosure, including the Charge Screening Form and the Crown's synopsis.
2. Write down the exact offer: the charge you would plead to, the sentence, and any added orders such as probation, a weapons prohibition or a DNA order.
3. Mark every fact you dispute in the synopsis and go through each one with your lawyer.
4. Book immigration advice before the plea date if you are not a Canadian citizen.
5. Gather sentencing material, such as reference letters, proof of work or school, and proof of any counselling you have started.
6. Ask for the explanation in your language. If you are more at ease in Persian, our guide for Persian-speaking people charged in the GTA explains each stage.

Frequently asked questions

Can I plead guilty at my first court appearance?

Usually not. The Ontario Court of Justice says no guilty pleas are taken in case management court, where first appearances happen. A plea is scheduled for a plea court, and some locations require the date to be booked in advance.

Does pleading guilty lead to a lighter sentence?

It can. In Anthony-Cook, the Supreme Court said a sentence recommended in exchange for a plea is likely to be more lenient than an accused might expect after a trial or contested sentencing (para. 36). No outcome is assured, because the judge decides.

Can I plead guilty without a lawyer?

Yes, but the court strongly encourages legal advice first. If you qualify, Legal Aid Ontario's duty counsel can help with a guilty plea; our page on duty counsel or your own lawyer explains how duty counsel works.

What should I bring to the plea hearing?

Bring what your lawyer asked for, such as reference letters and proof of work, school or treatment. Everything you give the court must be accurate and truthful.

Can the judge give me more than the Crown asked for?

Yes. The court is not bound by any agreement, and Legal Aid's guide notes the judge could impose a stricter sentence. With a true joint submission, the judge should apply the public interest test and give counsel a chance to respond to any concerns (Anthony-Cook, paras. 32 and 58).

Getting help

Gambriani Law PC advises people deciding whether to plead guilty and represents them at plea and sentencing hearings in courts across Ontario, including Toronto, York Region, Peel, Durham Region, Barrie and Windsor, in English and Farsi. Call +1 647 970 3370 or reach us through the contact page.

This page is general information about guilty pleas in Ontario, not legal advice about your case.