The Supreme Court of Canada recently provided tactical guidance to defence counsel seeking to persuade a trial judge to accept a joint submission on sentence (R. v. Anthony-Cook, 2016 SCC 43).
The message is clear: You must provide a sufficient evidentiary foundation to satisfy the trial judge that the joint submission does not bring the administration of justice into disrepute and is not otherwise contrary to the public interest.
The outcome of a sentencing hearing is never a foregone conclusion, particularly when the joint submission appears to be very lenient. The trial judge always has the final authority to determine the appropriate punishment, even when there is agreement between the Defence and the Crown (see Criminal Code of Canada s. 606(1.1)(iii)). A client runs a greater risk of receiving a more severe punishment if you take your foot off the gas prior to the conclusion of the sentencing hearing.
Both the Defence and the Crown must provide sufficient information to the trial judge. As the Court states at para. 54:
…Sentencing -- including sentencing based on a joint submission -- cannot be done in the dark. The Crown and the defence must "provide the trial judge not only with the proposed sentence, but with a full description of the facts relevant to the offender and the offence", in order to give the judge "a proper basis upon which to determine whether [the joint submission] should be accepted" (DeSousa, at para. 15; see also Sinclair, at para. 14).
Counsel should also be prepared to explain the circumstances that led to the joint submission. As the Court states at para. 53:
…when faced with a contentious joint submission, trial judges will undoubtedly want to know about the circumstances leading to the joint submission -- and in particular, any benefits obtained by the Crown or concessions made by the accused. The greater the benefits obtained by the Crown, and the more concessions made by the accused, the more likely it is that the trial judge should accept the joint submission, even though it may appear to be unduly lenient…
The bottom line is that counsel must be prepared to assuage the trial judge’s concerns about the public interest. As the Court states at para. 57:
…Unless counsel put the considerations underlying the joint submission on the record, "though justice may be done, it may not have the appearance of being done; the public may suspect, rightly or wrongly, that an impropriety has occurred" (C. C. Ruby, G. J. Chan and N. R. Hasan, Sentencing (8th ed. 2012), at p. 73).
The next post in this series will discuss the importance of confirming the details of a joint submission in writing with the prosecution in advance of plea.