SuzieSnipe

As a criminal defence lawyer, my number one piece of advice for clients considering a plea would be “guilty pleas are for guilty people.” That would seem self-evident, but too often it doesn’t work out to be the case. Innocent people plead guilty every day in our courts because the pressure for them to do so is overwhelming. For an accused who has been denied bail, an offer of “time served” in the face of an uncertain outcome and a lengthy wait for trial as the guest of Her Majesty is an offer that too often they cannot refuse to take.

And once you plead guilty, there are almost no take-backs. Appellate courts very rarely overturn pleas. If you can open your mouth and utter words to enter your plea, and there isn’t an obvious gun to your head, congratulations your plea was made voluntarily! Now off you go to serve your sentence! If you have intellectual function that exceeds being brain dead in a coma, chances are good that your plea will be considered informed. Mentally ill? Too bad, so sad. The Ontario Court of Appeal says that all you need is “limited cognitive capacity” for that plea to stick. Nobody wants to give up a perfectly good conviction just because *now* you’re telling us that you only pleaded guilty because you believed that Stephen Harper was an alien who would taser your genitals if you didn’t. Well, maybe that was a bad example. Many sane people believe Harper is an alien.

An upcoming case makes it clear that it is high time that the Ontario Court of Appeal faces the reality that the guilty pleas extracted by our criminal justice system too often result in wrongful convictions. On January 6, 2009 the Court granted Richard Brant an extension of time to appeal his conviction for the aggravated assault of his infant son. Mr. Brant is saying he was actually innocent — and there is some corroberating evidence that supports him. But, when he entered his plea in 1995, Mr. Brant was almost certainly going to be convicted of manslaughter based on the biased and formidable evidence of the now-disgraced Dr. Charles Smith. People often find it hard to believe that anyone could plead to a horrific crime that they didn’t do. Everyone thinks they’d do the honourable thing and maintain their innocence against all odds. Frankly, innocence and honour fall down on the list when the Crown has an overwhelming case against you and you know that if you don’t take a deal you’re going away for a very, very long time. Maybe even your own lawyer who’s supposed to be defending you says, “Buddy, you’d be stupid not to take the deal!”

That’s what happened to Mr. Hanemaayer who was recently exonerated nearly 20 years after pleading guilty to a break and enter and assault that had actually been committed by Paul Bernardo. For sure. No doubt about it. But in 1989, he had been sitting in the can for eight months waiting for his trial. The Crown’s case looked overwhelming. Mr. Hanemaayer watched during his trial as a very confident (but wrong) eye witness identified him from a biased photographic line-up array. There was evidence that he’d been working in the neighbourhood where the crime occurred. On the second day of trial, the Crown offered a kiss of two years less a day if he decided to plea. He was looking at six years’ imprisonment if he was convicted after trial. His lawyer thought a plea was a good idea. So he pleaded away and served his sentence.

Cut to 2006 when evidence came to light that proved beyond any reasonable doubt that the offence was committed by Paul Bernardo. With the assistance of James Lockyer, champion for the wrongfully convicted, he appealed. Mr. Hanemaayer argued that the guilty plea should set aside because it was involuntary. Not so much, said the Ontario Court of Appeal. They took out their test for “voluntariness” and found that Mr. Hanemaayer’s plea was voluntary and valid in every respect. Fortunately for Mr. Hanemaayer, they set it aside anyway in the interests of justice. This is what the Court said:

“…[T]he court cannot ignore the terrible dilemma facing the appellant. He had spent eight months in jail awaiting trial and was facing the prospect of a further six years in the penitentiary if he was convicted. The estimate of six years was not unrealistic given the seriousness of the offence. The justice system held out to the appellant a powerful inducement that by pleading guilty he would not receive a penitentiary sentence.”

Here, here! Now it is time to fix the way we look at pleas, delays in reaching trial, pre-trial custody, Crown Attorneys who seek the detention of the accused as a substitute for the wise use of their discretion and a Crown office culture in some courts that holds convictions at any cost, not justice, as the gold standard. And appellate courts have got to reformulate their conception of what constitutes a valid plea. Listen people, innocent folks plead guilty every day to things they didn’t do. Cases like Mr. Hanemaayer and Mr. Brant’s are painted as exceptional. The only thing that is exceptional about either of these cases is that these men are uniquely lucky to have evidence surface that points to their innocence. Unfortunately, given the state of the law and the courts right now, everyone else can apparently just go fuck themselves.