In R. v. Anthony‑Cook, 2016 SCC 43, October 21, 2016, the Supreme Court of Canada considered joint submissions. In this case the accused pleaded guilty to the offence of manslaughter. Counsel presented a joint submission seeking the imposition of a period of eighteen months imprisonment. The trial judge rejected the submission and imposed a period of two years, less a day, imprisonment, followed by three years of probation. The accused appealed. His appeal was dismissed by the British Columbia Court of Appeal. He appealed to the Supreme Court of Canada.
The Supreme Court allowed the appeal and imposed a period of eighteen months imprisonment. It set aside the probation order. The Supreme Court concluded that the sentence jointly submitted should have been imposed.
The Court held that in assessing a joint submission a sentencing judge must adopt a “public interest test.” The Court described the test in the following manner (at paragraphs 32 to 34):
Under the public interest test, 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. But, what does this threshold mean? Two decisions from the Newfoundland and Labrador Court of Appeal are helpful in this regard.
In Druken, at para. 29, the court held that 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”. And, as stated by the same court in R. v. B.O., 2010 NLCA 19 (CanLII), at para. 56, 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”.
In my opinion, these powerful statements capture the essence of the public interest test. They emphasize that a joint submission should not be rejected lightly. Rejection sends the negative message, that the parties to the litigation do not understand the strengths and weaknesses of their own case and can not be trusted to resolve matters in the interests of justice.
The Supreme Court indicated that the following procedure should be followed (at paragraphs 51 to 53, and 58 and 59):
First, trial judges should approach the joint submission on an “as-is” basis. That is to say, the public interest test applies whether the judge is considering varying the proposed sentence or adding something to it that the parties have not mentioned, for example, a probation order. If the parties have not asked for a particular order, the trial judge should assume that it was considered and excluded from the joint submission. However, if counsel have neglected to include a mandatory order, the judge should not hesitate to inform counsel. The need for certainty in joint submissions cannot justify failing to impose a mandatory order.
Second, trial judges should apply the public interest test when they are considering “jumping” or “undercutting” a joint submission (DeSousa, per Doherty J.A.). That is not to say that the analysis will be the same in either case. On the contrary, from the accused’s perspective, “undercutting” does not engage concerns about fair trial rights or undermine confidence in the certainty of plea negotiations. In addition, in assessing whether the severity of a joint submission would offend the public interest, trial judges should be mindful of the power imbalance that may exist between the Crown and defence, particularly where the accused is self-represented or in custody at the time of sentencing. These factors may temper the public interest in certainty and justify “undercutting” in limited circumstances. At the same time, where the trial judge is considering “undercutting”, he or she should bear in mind that the community’s confidence in the administration of justice may suffer if an accused enjoys the benefits of a joint submission without having to serve the agreed-upon sentence (see DeSousa, at paras. 23-24).
Third, 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. For example, if the joint submission is the product of an agreement by the accused to assist the Crown or police, or an evidentiary weakness in the Crown’s case, a very lenient sentence might not be contrary to the public interest. On the other hand, if the joint submission resulted only from the accused’s realization that conviction was inevitable, the same sentence might cause the public to lose confidence in the criminal justice system.
Fourth, 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, including the possibility of allowing the accused to withdraw his or her guilty plea, as the trial judge did in this case.
Fifth, 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.
Finally, 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.
In setting aside the probation order, the Supreme Court concluded that “it should not have been made. While the trial judge had reason to be concerned about how the appellant would manage in the community, these concerns were addressed by counsel” (at paragraph 64).