The Supreme Court of Canada recently provided guidance to trial judges regarding the procedure to be followed when applying the public interest test for rejecting a joint submission (R. v. Anthony-Cook, 2016 SCC 43).

A trial judge has a duty to alert counsel that there is a problem with a joint submission before passing sentence. As the Court states at para. 58:

…if the trial judge is not satisfied with the sentence proposed by counsel, "fundamental fairness dictates that an opportunity be afforded to counsel to make further submissions in an attempt to address the ... judge's concerns before the sentence is imposed" (G.W.C., at para. 26). The judge should notify counsel that he or she has concerns, and invite further submissions on those concerns…

A trial judge may provide an accused with an opportunity to withdraw the guilty plea if there is a valid basis for doing so (for example, if the plea was uninformed). As the Court states at para. 59:

…if the trial judge's concerns about the joint submission are not alleviated, the judge may allow the accused to apply to withdraw his or her guilty plea. The circumstances in which a plea may be withdrawn need not be settled here. However, by way of example, withdrawal may be permitted where counsel have made a fundamental error about the legality of the proposed joint submission, for example, where a conditional sentence has been proposed but is unavailable. 

If a trial judge then departs from the joint submission, there is a requirement to provide comprehensive reasons. As the Court states at para. 60:

…trial judges who remain unsatisfied by counsel's submissions should provide clear and cogent reasons for departing from the joint submission. These reasons will help explain to the parties why the proposed sentence was unacceptable, and may assist them in the resolution of future cases. Reasons will also facilitate appellate review.

The next post in this series will examine the importance of laying an evidentiary foundation to support a joint submission at a sentencing hearing. 

Other considerations:

·      A trial judge has a duty to follow this procedure whether contemplating a wholesale rejection or a ‘tailoring’ of the joint submission (for example, by adding a probation order or a condition of a probation order). As stated by the Court in Anthony-Cook, at para. 51:

…trial judges should approach the joint submission on an “as-is” basis. …If the parties have not asked for a particular (discretionary) order, the trial judge should assume that it was considered and excluded from the joint submission. …

·      A trial judge has a duty to inform counsel of any mandatory orders that may have been overlooked as part of a joint submission (Anthony-Cook, at para. 51).


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