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Is ‘no contest’ a door best left closed?
By Neil McCartney

February 24 2012 issue


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You don’t have to be in criminal practice for long before you encounter the client who didn’t do it but wants to plead guilty “just to get it over with,” or because “they won’t believe me anyway”—or even, in cases involving young or vulnerable Crown witnesses close to the accused, because “I can’t put them through a trial.”

In the United States such a client might, with the court’s permission, enter a plea of nolo contendere or “no contest,” indicating that, though guilt is not acknowledged, the sufficiency of the prosecution’s case to prove the charge is, and no defence is offered. Sentencing then proceeds just as it does after a guilty plea.

But in Canada an accused may only plead guilty or not guilty (and, in very rare “double jeopardy” circumstances, the “special” pleas of autrefois acquit or autrefois convict or pardon). “No contest” is not an option.

Or is it? While the formal plea may not exist here, a recent decision from the Ontario Court of Appeal sheds some official (and not disapproving) light on an approach that occasionally crops up in our criminal courts, by which an accused can take something like the “no contest” route.

It works like this: the accused pleads “not guilty,” but then the defence permits the Crown to introduce its whole case through defence admissions (as are authorized under s. 655 of the Criminal Code). No defence is called and (presuming that the admitted case makes out the offence) the accused is found guilty.

In R. v. D.M.G., [2011] O.J. No. 1966 (Ont. C.A.), Watt J.A. rules that the above procedure was improperly attempted in the particular case before him because the accused neither understood nor assented to its use.

But of broader interest is the court’s obiter dicta, overtly recognizing that this procedure does indeed amount to a plea of “nolo contendere” and in a proper case, is quite all right.

Says Justice Watt, “[n]o statutory provision or common law principle prohibits a procedure similar to what was followed here after an accused has entered a plea of guilty. The flaw here was [only] in the execution.”

He goes on: “The procedure followed here was the functional equivalent of a plea of guilty (or, in other jurisdictions, a plea of nolo contendere). The appellant’s conviction, despite his plea of not guilty, was a certainty. Plea inquiries are mandatory where pleas of guilty have been entered, even where an accused is represented by counsel. Where what occurs is the functional equivalent of a guilty plea, an inquiry should be conducted to ensure that the accused understands the nature and effect of the procedure and has voluntarily participated in it.”

So, we are told, this procedure is not improper, as long as the trial judge treats it like a guilty plea, insofar as the kind of inquiry discussed in s. 606 of the Code is concerned: the court must confirm that the accused takes this approach voluntarily and is informed of the consequences.

On the face of it, Justice Watt is only stating the obvious. Our system of justice has never involved forcing an accused to call a defence, nor the fettering of a defendant’s freedom to instruct his counsel as he wishes—even if those instructions are to refrain from cross-examining or otherwise challenging the prosecution’s evidence.

Yet, given our law’s usual dislike for doing indirectly what you can’t do directly, there is something vaguely troubling about sanctioning a “no contest” surrogate procedure, in the face of an overt prohibition on pleading same (Code, s. 606(1) allows the accused to enter the pleas of guilty, not guilty, the special pleas, “and no others”). Surely the framers of our criminal law had their reasons for leaving it out?

Maybe it’s the ethical element that is the source of this discomfort. We are told that a lawyer must not participate in a guilty plea proceeding if aware that the client does not admit guilt (the sources of this rule are discussed in R. v. Moser, [2002] O.J. No. 552 at para. 39 (Ont. Sup. Ct.)). So how do we reconcile our participation in “the functional equivalent of a guilty plea,” with the certain knowledge that the client asserts his innocence?

And what about those actually innocent defendants who are saved from throwing in the towel in the face of a seemingly overwhelming Crown case, solely by their inability to bring themselves to plead guilty? Doesn’t the availability of “no contest” remove this important bulwark against wrongful convictions? We know from experience that the discouraged innocent can be induced even to plead guilty, let alone to refrain from contesting (see R. v. Kumar, [2011] O.J. No. 618 (Ont. C.A.), in the context of the Dr. Charles Smith scandal). If the “no contest” approach really caught on, wouldn’t the scope for that particular type of miscarriage of justice be broadened?

It’s not as though this procedure could (or should) be prohibited, and there may indeed be the occasional case where it solves more problems than it causes. But for the most part it may be best for Her Majesty’s courts to leave it south of the border.

Neil McCartney is a partner in the firm of Atwood Labine Arnone McCartney LLP, of Thunder Bay, Ont., where he practises criminal litigation.


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