More than 90 per cent of criminal convictions in Canada are not the result of a trial, but of a guilty plea. As I wrote a couple of years ago, people plead guilty for many reasons, only one of which is that they are actually guilty. But that’s another matter.
Every guilty plea involves the creation of something called an “agreed statement of facts.” The Crown and the defence agree that the set of facts in this statement are true, and those facts are then read in court as justifying both the charge and the plea of guilty.
I should note that what follows is not a lawyer’s or judge’s understanding, but what I grew to understand about this process based on my experience and conversations with many other convicted people.
The thing I learned from my experience is that the key word in the phrase “agreed statement of facts” is not “facts,” but “agreed.” The key to the statement is that the two sides agree to it and that it contains enough information to justify the charges and the guilty plea. It may contain statements that one side would not regard as factual, and it certainly will omit facts that most outside observers would see as highly relevant to the charge. In many cases the “statement of facts” will not provide an adequate understanding about what happened and why. It was quite unnerving to me that the only official account of what happened in relation to my charges was so limited, if not misleading.
The negotiation of the “agreed statement of facts” is generally part of the negotiation that also takes place over which charges will be accepted, and over a proposed sentence. The Crown will often begin by painting as dark a picture of the accused and the offence as they can, to justify a harsh sentence. The defence will do just the opposite, hoping, despite a guilty plea, for a less severe sentence. (I do not use the term “softer” sentence because no criminal conviction is a “soft” experience.)
In my case, the Crown originally wanted to include in the statement the names of a number of other people who they considered had some connection to my charges. I absolutely did not want to drag other people’s names into public, especially since some of that had already happened through some media reporting that I can only describe as irresponsible and salacious. But to get those names taken out of the draft statement, I had to agree to include some other statements that were, in my opinion, not really accurate. My lawyer told me that these inclusions would have little or no effect on the sentence I would get, so I agreed. In any case, it was not up to me; there had to be some kind of agreement.
Another example of how statements of fact vary is the extent to which it references the previous life of the accused, and factors that may have led up to the crime. For example, background factors for the accused person that might help explain some behaviour, such as an abusive past (not the case for me, I should be clear), may or may not appear in the statement.
Facts can be presented in various ways. For example, the Crown might want a statement to say that “the defendant, on five occasions, did x,” whereas the defence might prefer something like “on the day in question, the defendant did x.” Both could be true, but only one will end up in the statement. Virtually every line of the statement in my case involved compromises of this kind, while the statement as a whole represented a middle position between how I would have described what happened and what the Crown wanted to say.
There is also the choosing of which facts to include out of the potentially large range relevant to any crime. To tell the full story of even a minor crime could involve extensive discussion of the background of the accused, perhaps of the backgrounds of victims, of the specific situation in which the crime took place, and so on. There is always a lot more than can be said. Most of this just won’t be in the “agreed statement of facts.”
It’s not only in the “agreed statement of facts,” of course, that such compromises are made in the criminal justice system. Every case involves the omission of many potentially relevant facts. Witnesses may be selective about what they tell the police or prosecutors — and the police may be selective about what they ask and what they report about the evidence. There are many cases on record where the police or Crowns did not pursue avenues of investigation that do not fit their preferred theory of what happened.
We also see the conflicting versions of events and how hard it can be to decide which version is true when a trail does occur. Sometimes judges just have to decide who they believe, even though this seems a violation of the “beyond a reasonable doubt” standard that is supposed to be needed for a criminal conviction. Sometimes we learn in a trial (for example, the recent Zameer case in Ontario) how a version of events, even if sincerely believed by the prosecution, was quite incorrect.
Why does all this matter? It matters greatly because in the criminal justice system there must eventually be only one set of “official” facts that is the basis for the court’s judgment. We cannot send people off to prison on the basis of disputed facts (though in reality the facts often remain disputed even after a judgment is made).
Further, since very few criminal cases ever get resolved via a trial, in most cases the “agreed statement of facts” is the main source of public information about what happened, and the only official source. There may also be police press releases or media reporting but, though influential, they do not have the imprimatur of truth. The statement also shapes what the media report, what is on social media, and therefore what most people understand about the events in question and the persons involved. Yet none of this can readily assumed to be complete, or even entirely true.
Next time you hear or read about the outcome of a criminal case, remember that the facts you are hearing are not the whole story, and be a little less willing to come to a firm judgment.
David Dorson is the pen name of someone who went through arrest, case disposition, imprisonment and parole in Ontario a few years ago. Law360 Canada has granted him anonymity because he offers a unique perspective on a subject that matters deeply to many readers, and revealing the author’s identity would make re-establishment in the community after serving his sentence much more difficult than it already is.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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