Should defence lawyers ever agree to no-contest pleas?

Should criminal defence lawyers agree to no-contest pleas when their clients are asserting their innocence? The Court of Appeal says it’s possible, but new guidance from the Law Society Tribunal suggests otherwise.
Defence lawyer Jeff Hershberg says he has never used a no-contest plea.

“There are definite concerns to be had with the no-contest plea when it’s done in a matter like this,” says Hershberg, a partner at Rusonik O’Connor Robbins Ross Gorham & Angelini LLP.

“I see an issue with a no-contest plea being entered when a client maintains their innocence.”

The comments follow a Law Society Tribunal appeal panel decision in Law Society of Upper Canada v. Besant that expressed doubt on whether criminal lawyers should ever participate in no-contest pleas when their clients are asserting their innocence.

The panel rejected an appeal of a finding of professional misconduct against David Besant, a lawyer accused of, among other things, entering “a de facto plea of guilty by pleading no contest” to the allegations against one of his clients.

Besant entered what the appeal panel found to be the equivalent of a no-contest plea to the allegations even as his client, identified only as D.G., maintained his innocence throughout the process, according to the appeal ruling.

In a postscript to the decision, panel chairman Mark Sandler suggested lawyers should be “extremely reluctant to assist with what is functionally a guilty plea when the client asserts his or her innocence.”

“The potential for a wrongful conviction of a factually innocent client is obvious,” wrote Sandler.

D.G. had been facing multiple counts of sexual assault and sexual interference. On one of those counts, Besant told the court his client would enter a not-guilty plea but that he wouldn’t dispute the allegations.

Besant said: “He understands that normally the Crown would have to call witnesses to prove their case. He is content that no witnesses be called in this matter, and he’s content that — that this court will find that, based on the allegations, that he is guilty of Count 3, and that there will be later a conviction with respect to these offences, or that offence, in connection with the subject charge.”

Besant also said his client understood he was giving up his right to a full trial, adding his instructions were that D.G. “wishes to resolve the matter.”
The Crown went on to read the summary of the allegation in D.G.’s case.

According to the appeal panel, the process was the functional equivalent of a nolo contendere plea, something that’s not formally available in Canada. Despite jurisprudence from the Court of Appeal in cases such as R. v. R.P. authorizing the use of the procedure, the appeal panel found lawyers shouldn’t elect that route even when a client agrees with it.

“Second, although the Court of Appeal cited jurisprudence that countenanced even a guilty plea by an accused who maintains his or her innocence when the plea is voluntary, unequivocal, and fully informed, we have doubts whether defence counsel should ever participate in such a plea,” wrote Sandler.

In the very rare cases of a no-contest plea, it would be because the lawyer sees an advantage in the client not giving any testimony, says Hershberg. For example, if a case largely relies on a pretrial application that fails at first instance but the lawyer believes has a good chance on appeal, the Crown wouldn’t be able to use the defendant’s testimony against him or her in a new proceeding, he notes.

But such an advantage would depend on many things falling into line, Hershberg adds, noting it’s not an ideal method to employ.

“By not contesting the facts and just letting the judge find them guilty, the interest of the client may not be properly covered, especially in a sexual assault case,” he says. “In sexual assault, not only do you get the sentence and the stigma of an assault conviction, you’re on a sexual offender registry for 10, 20 years or life.”

For the appeal panel, the plea is “misleading” and a potential cause for a finding of misconduct against lawyers. “In our view, for the purposes of possible law society disciplinary proceedings, it is potentially misleading for counsel to participate in advising a court that the facts are substantially correct, knowing that his or her client says that the facts are incorrect,” wrote Sandler. “That would arguably be an instance in which counsel is knowingly presenting the client’s position to the court in a misleading way.”

Toronto criminal defence lawyer Anthony Moustacalis says he, too, isn’t a fan of no-contest pleas. But it may be a good option when clients say they were drunk at the time of the incident in question and can’t confirm whether they’re guilty or innocent, he says.

“It makes it difficult to plead guilty if the client can’t say that they are guilty. But on the other hand, they may be prepared to admit some facts,” says Moustacalis.

“If a client says, ‘I am not guilty but I just want to get it over with,’ my response would be it doesn’t work that way,” he adds.

Hamilton, Ont., criminal defence counsel Jeff Manishen, who represents lawyers in professional liability matters, says he urges members of the profession to have a good look at the appeal panel’s decision.

“I appreciate the dilemma of having an accused who doesn’t want to have a trial and would like the benefit of proceedings being shortened, would like to have this as an available procedure,” says Manishen.

“Certainly the Court of Appeal has expressly authorized it. But are there real professional risks a lawyer would run in proceeding in that manner? Yes, and frankly I entirely support and endorse the comments of the panel in Besant and would encourage any lawyer thinking about proceeding with an effective nolo contendere to read the law society’s decision.”

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