Another answer on this site uses an "agreed statement of facts" as a device to focus the answer on the law. It includes several facts that go towards establishing the actus reus and mens rea of an offence.

A comment asks: "Really, what sort of defense attorney would concede these up front?!"

When would an agreed statement of facts that concedes elements of the offence be used?

1 Answer 1


An agreed statement of facts is expressly allowed by s. 655 of the Criminal Code, and it frees the prosecution from proving those things. It dispenses with the need to prove things that would normally be proved through evidence at trial. There are several circumstances where an agreed statement of facts would be agreed to by defence, even where the statement of facts establishes or concedes elements of the offence:

  1. Where one is going to plead guilty and part of the plea agreement is that the defendant will expressly admit various details about the offence (rather than to simply admit the bare minimum necessary to support a guilty plea).
  2. Where the evidence on various aspects is clearly overwhelming and will certainly be proved by the prosecution. The defence may want to avoid having the prosecution walk the jury through the evidence establishing those elements because it could have a prejudicial spill-over effect on the jury's impression offence as a whole. Or, the defence believes they have a strong case on another point and want to move the trial quickly ahead to the issue that matters, to more quickly get the accused to an acquittal. (This was the circumstance in R. v. Baksh, cited in the answer that spurred this question. The defence agreed that they took a child without consent. They wanted to get on to the issue of whether the mother could provide retroactive consent: it was found that she didn't, and even if she had, both courts were highly skeptical that that could even matter at law.)
  3. Where the defence and prosecution actually agree on all the facts, but differ as to the proper interpretation or constitutionality of the offence being charged. For an example of this, see R. v. Daniels, 2004 NLSCTD 27, affirmed in 2004 NLCA 73. The accused agreed to all the facts that would ultimately establish that he was guilty of possession of child pornography. His defence was based on an argument about the definition of "possession" (which he ended up being incorrect about).

It is scenario three that is often useful to borrow as a device on this site, and how I used it in the answer that spurred this question. When trying to determine or explain what the elements of an offence are, it can be helpful to simply stipulate all the facts and ask whether they make out the offence. Or whether an additional fact X would negate an element of the offence. This approach cleanly focuses the question on the elements of an offence and avoids issues relating to evidence of those elements.

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    In Germany, admitting an offence may reduce the sentence. Further, not admitting something that's obviously true makes you look like a liar (psychologically, I know it should be ignored by law in most circumstances). That even leads to the saying that you should concede everything that the police/prosecution will be able to prove anyways.
    – DonQuiKong
    Feb 10 at 10:08
  • @DonQuiKong Denying an obvious truth can harm your case, indicating you are "remorseless" which can increase the sentence.
    – Trish
    Feb 11 at 19:17

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