The Lost Art of the Plea Inquiry: Learning From the Past to Prevent Wrongful Convictions in the Future

Abstract

A guilty plea wrongful conviction occurs when an innocent person pleads guilty to a crime that they did not commit. Canada’s main procedural protection against guilty plea wrongful convictions is an inquiry, codified in sections 606(1.1) and (1.2) of the Criminal Code, that courts must conduct before accepting a plea from the accused. This plea inquiry requires that a court be satisfied of three conditions before accepting a guilty plea from an accused: (1) that the plea is voluntary, (2) that the plea is informed, and (3) that the facts support the charge.

The goal of this article is to show that sections 606(1.1) and (1.2) offer insufficient protection against false guilty pleas and can be improved by learning from the early common law courts’ approach to plea inquiries. This article argues that when sections 606(1.1) and(1.2) were enacted in 2002, guilty plea wrongful convictions were poorly understood and, as a result, Parliament crystalized a plea inquiry that systematically fails to account for many recently recognized causes of false guilty pleas. However, this article suggests that sections 606(1.1) and (1.2) can be improvedby looking to the early common law, when courts were skeptical of guilty pleas and the risk of wrongful conviction. In particular, this article recommends three ways that sections 606(1.1) and (1.2) can be improved: (1) to conduct a full plea inquiry in every case, (2) to individualize the inquiry to the accused by considering their circumstances and motive for pleading guilty, and (3) to foster a skeptical attitude towards guilty pleas amongst the judiciary. This article further argues that these lessons can, at least in part, be implemented by challenging the constitutionality of sections606(1.1) and (1.2) under section 7 of the Charter.