2. Find out the facts the Crown will rely on

The Crown uses facts to prove you’re guilty of a criminal offence. These include facts that show:

• you did something against the law – this is the actus reus
• you had a guilty state of mind when you broke the law – this is the mens rea

The facts are based on the police investigation and what witnesses and others said.

When the Crown is deciding what to do in your case, they usually rely on a synopsis of the facts. The synopsis is a summary of the facts of your case. Find out what the synopsis says before you plead guilty. This should be part of your disclosure.

When you plead guilty, these facts are read out loud in court and included in the court record. Make sure you agree with them before your sentencing hearing starts. If you don’t agree with these facts, you can’t plead guilty. You will have to set a trial date.

Negotiating the facts with the Crown

If you think parts of the synopsis are not accurate, you may be able to convince the Crown not to mention those parts. This includes aggravating factors, mitigating factors, and information that is exaggerated.

You must do this before your plea date. 

Gardiner hearings

If you and the Crown can’t agree on the facts, ask for a Gardiner hearing. At the Gardiner hearing, the judge decides what factors to include based on the evidence. You and the Crown can present evidence using documents and witnesses. You and the Crown will be allowed to ask the witnesses questions.

The judge decides which mitigating factors to use based on whether the factors can be proven by the Crown on a balance of probabilities. This means the judge must be more convinced than not that the mitigating factors should be considered.

The judge decides which aggravating factors to use based on whether the factors can be proven by the Crown beyond a reasonable doubt. This means proof that is close to an absolute certainty.