Judges should give careful consideration to joint submissions
Joint submissions must be carefully considered and should be followed absent an articulable basis upon which the trial judge concludes that the proposed sentence would bring the administration of justice into disrepute or that it is otherwise contrary to the public interest: R v Anthony-Cook, 2016 SCC 43 at para 32; R v McLellan, 2016 ONCA 215 at para 2
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 trial judges should “avoid rendering a decision that causes an informed and reasonable public to lose confidence in the institution of the courts”: Anthony-Cook at paras 33-34
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. However, if counsel have neglected to include a mandatory order, the judge should not hesitate to inform counsel: Anthony-Cook at para 51
Trial judges should apply the public interest test whether they are considering “jumping” or “undercutting” a joint submission. The public interest criteria involved in considering whether to undercut a sentence are different, however.
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: Anthony Cook at para 52
Counsel's Obligations in presenting a joint submission
When faced with a contentious joint submission, trial judges will 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: Anthony-Cook at para 53
Counsel should provide the court with a full account of the circumstances of the offender, the offence, and the joint submission without waiting for a specific request from the trial judge. Counsel are obliged to ensure that they justify their position on the facts of the case and be able to inform the trial judge why the proposed sentence would not bring the administration of justice into disrepute or otherwise be contrary to the public interest. If they do not, they run the risk that the trial judge will reject the joint submission: Anthony-Cook at paras 54-55
When a trial judge proposes to depart form a joint submission
The Procedure to be followed
If the trial judge is not satisfied with the sentence proposed by counsel, 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: Anthony-Cook at para 58
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: Anthony-Cook at para 59
Trial judges who remain unsatisfied by counsel’s submissions should provide clear and cogent reasons for departing from the joint submission: Anthony-Cook at para 60