The Lawyers Weekly - February 24, 2012

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Is ‘no contest’ a door best left closed?

you don’t have to be in crim-
inal 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 per-
mission, enter a plea of nolo con-
tendere or “no contest,” indicating
that, though guilt is not acknow-
ledged, the sufficiency of the pros-
ecution’s case to prove the charge
is, and no defence is offered. Sen-
tencing 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 autre-fois 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

NEIL
MCCARTNEY

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 statu-
tory 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 repre-
sented by counsel. Where what
occurs is the functional equiva-
lent of a guilty plea, an inquiry
should be conducted to ensure
that the accused understands the
nature and effect of the proced-
ure and has voluntarily partici-
pated 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 dis-
cussed in s. 606 of the Code is
concerned: the court must con-
firm 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 partici-

See No Contest Page 15

‘No contest’ is not an option.

Or is it?…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.