Am I able to take back my guilty plea?

When you enter into a guilty plea, you are waiving your right to trial, meaning the crown no longer has to prove your charges beyond a reasonable doubt. Guilty pleas are usually assumed to be valid, particularly if you had legal counsel at the time you entered your plea. When you enter your plea, you are asked specific questions to determine whether you fully comprehend what it means to enter a plea of guilty. If, however, you do wish to withdraw your guilty plea, it is now up to you to prove to the court that you should be allowed to do so. Only under very limited circumstances will the court allow you to withdraw a guilty plea.


There are only two ways a judge will allow a withdraw of a guilty plea:  if it is invalid, or at the judge’s discretion. The elements of a valid guilty plea are that the plea was voluntary, unequivocal and informed. In order for a court to set aside a guilty plea, one of these elements must be missing. When assessing whether the plea was valid, the court will look at a variety of factors including whether you were enticed or coerced in any way, whether you were under the influence of any substance that may impair your ability, whether you had previous experience with the justice system, if the judge asked all the questions necessary to enter a guilty plea, whether you have any mental health issues that would hinder your understanding, whether you expressed any hesitation with the charges, and whether there was a language barrier.


A guilty plea can also be withdrawn where it would be a miscarriage of justice not to do so. A situation where the judge can use their discretionary power to grant a withdraw of a plea includes where the accused has been given wrong legal advice, or where the accused could not be convicted of the offence based on the admitted facts.


It is important that you seek legal advice before entering into a guilty plea to make sure you are fully informed and understand the consequences of doing so. A withdraw of guilty plea is rarely granted, so it is always best to consult a lawyer before pleading.


Ron Ellis is a criminal defence lawyer based in London, Ontario and practices criminal defence law all over Southwestern Ontario, including Grand Bend, Sarnia, Woodstock and Kitchener.

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