Criminal Law

Considering a plea deal begins with the client: Daviau

By Peter Small, Contributor

A client's intentions must be top of mind when advising whether to accept a plea deal, says Toronto criminal lawyer Lindsay Daviau.

"First and foremost, it's the client's decision, and so you can't even be entertaining this unless your client is on board," says Daviau, who practises with Rosen & Company Barristers.

"Some clients will say to you, 'Look I didn't do it.' And then they can't plead guilty," she tells "But if you sit down with a client and he says, 'Look this is what happened. I want to resolve this,' that has to be your focus."

Even if the client confides that they did commit the crime, they are still entitled to put the Crown to its proof, Daviau says.

Sometimes the evidence is weak, or the Crown has overreached in the seriousness of the charges, in which case going to trial may be the best course, she says.

Before defendants can make an informed choice, however, they must understand the case against them, Daviau says.

If it's a strong Crown case, but the prosecutor is still willing to make a deal, you have to sit down and have a conversation with your client about their jeopardy, she says. "You can't give them certainty, but you certainly can give them advice with respect to their exposure."

It's important to have all the disclosure first, however, it may take longer, Daviau says.

"Even with a client who says, 'Look, I want to resolve this,' you have a duty to obtain the disclosure and review it so that you can give them some real advice on their peril and what the Crown can and can't prove," she says.

Other factors can come into play.

Your client may not want to go to trial because it will take longer and, if they are ineligible for legal aid, more expensive, Daviau says.

"Also, in many cases, it gets worse after trial," she says. "If the Crown has a very strong case, the odds of getting a favourable sentence for your client are better if it's prior to a trial."

The seriousness of the alleged crime is important, Daviau says. A lawyer can sometimes persuade the Crown to accept a guilty plea to a lesser count than the one on the docket.

In some instances, the incentive to plead guilty greatly diminishes, however, if the crime has a mandatory minimum sentence, she says. Unless the Crown is willing to put another charge on the table to get around the mandatory minimum, which rarely happens, the incentive to resolve essentially evaporates, Daviau says.

Another factor is whether the defendant has a criminal record, she says. If they don't have a record, they might want to fight the charge more than someone who already has several convictions, Daviau says.

If a plea deal is warranted, however, she believes in seizing the initiative.

"I have no hesitation in going to the Crown and saying, 'Look, he's been charged with this but can you consider X, Y, Z, and take this into account? Would you let him plea to this for this?' I don't sit back and wait for the Crown to do that. I don't think you should," Daviau says.

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