A judge has the final authority to determine the appropriate punishment at a sentencing hearing, even when there is agreement between the Defence and the Crown (see Criminal Code of Canada s. 606(1.1)(iii)).

Defence counsel can never guarantee that a client will receive a particular sentence.

That being said, a joint submission, where the Crown and the Defence negotiate an agreement to recommend the same sentence in exchange for a guilty plea, will allow a client to significantly reduce the risk of exposure to a greater punishment.

The common law imposes strict limitations on when a judge may order a punishment greater than that jointly submitted by counsel. Stated differently, a joint submission serves to constrain a judge's discretion at a sentencing hearing.

The leading case for a trial judge to consider when perturbed by a joint submission is the recent decision of the Supreme Court of Canada in R. v. Anthony-Cook, [2016] S.C.J. No. 43. When contemplating whether to ‘jump’ a joint submission and impose a greater punishment, a judge must apply the legal test articulated by the Court at para. 32:

…a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest (emphasis added).

The Court directs that this is “an undeniably high threshold” (para. 34) and that trial judges must “approach joint submissions from a position of restraint” (para. 46).

The Court adopts language from two decisions of the Newfoundland Court of Appeal to provide guidance to trial judges when applying the stringent standard:

…a joint submission will bring the administration of justice into disrepute or be contrary to the public interest if, despite the public interest considerations that support imposing it, it is so "markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of the criminal justice system"… (para. 33) (emphasis added).

And later in that same paragraph, the Court states:

…when assessing a joint submission, trial judges should "avoid rendering a decision that causes an informed and reasonable public to lose confidence in the institution of the courts" (emphasis added).

At para. 34, the Court continues on to say:

… Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down…. (emphasis added).

The Court also notes at para. 47 that “a very lenient, even ‘demonstrably unfit’ sentence may, in a particular case, serve the greater good”.

For a client who acknowledges wrongdoing and desires a high degree of confidence with respect to the ultimate outcome, a joint submission may provide some comfort as it is rare for a judge to impose a greater punishment.

The next post in this series will examine how joint submissions serve the public interest.

Other considerations:

·      The need for public education to enhance understanding of the sentencing process is critical for maintaining confidence in the administration of justice.

·      The Court in Anthony-Cook defines “joint submissions” as “…when Crown and defence counsel agree to recommend a particular sentence to the judge, in exchange for the accused entering a plea of guilty” (para. 2).

·      The Court in Anthony-Cook also indicates that the reasoning of the case applies where the Defence and the Crown are “in full agreement as to the appropriate sentence”(footnote to para. 2) (emphasis added).

·      The shorthand name that the Court adopts for the test for rejecting a joint submission in Canada is “the public interest test (para. 51).


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