In R. v. Anthony‑Cook, 2016 SCC 43, the Supreme Court of Canada recently confirmed that trial judges should only depart from a joint submission in very limited circumstances, where the sentence proposed would bring the administration of justice into disrepute, or is otherwise not in the public interest.
Resolution negotiations are a prevalent and necessary feature of our criminal justice system. They allow the Crown and the accused to avoid the uncertainty, stress and legal costs associated with trials where the accused admits guilt and is not exercising his right to make full answer and defence. Resolutions also save the court system precious time, resources, and expenses. Indeed, without resolutions the criminal justice system would collapse under its own weight.
Joint submissions – in which the Crown and the defence jointly submit an agreed sentence to the Court – are an essential component of an efficient and fair resolution process. As reflected in section 606(1.1)(b)(iii) of the Criminal Code of Canada, trial judges are vested with discretion to accept or not accept a joint submission on sentence by the Crown and the defence. In order for resolutions to be attractive to the Crown and the accused, they must have a high degree of certainty that the Court will not exercise this discretion to depart from them.
Disparate Approaches of Provincial Appellate Courts
Prior to Anthony-Cook, the approach of appellate courts across the country had splintered into four separate tests with varying degrees of strictness:
- The Fitness Test: Trial judges may depart from a joint submission if the sentence proposed is not fit.
- The Demonstrable Unfitness Test: Trial judges may depart from a joint submission if the sentence proposed is demonstrably unfit.
- The Public Interest Test: Trial judges may depart from a joint submission where the sentence proposed would bring the administration of justice into disrepute, or is otherwise not in the public interest.
- The Hybrid Test: The fitness and public interest tests are functionally the same and may be used interchangeably.
The Public Interest Test Prevails
Justice Michael Moldaver, writing for a unanimous Court, declared that the public interest test, the most stringent of the tests, should be applied in the future as it best reflects the benefits that joint submissions bring to the criminal justice system and the corresponding need for a high degree of certainty in them.
The public interest test for departing from a joint submission is an “undeniably high threshold” that will only be met where the sentence proposed 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.
Procedure for Trial Judges When Considering Departing From a Joint Submission
The Court also set out the procedure that should be followed by trial judges when they are considering departing from a joint submission.
1) Parties Provide Trial Judge with Information About Proposed Sentence
The Crown and defence counsel should disclose the circumstances leading to the joint submission, including any benefits obtained by the Crown (such as an agreement to cooperate with the Crown or police in another case) or concessions made by the accused (such as the voluntary return of proceeds of crime). Disclosing all of the circumstances around the joint submission will not be possible in many cases. The content of plea negotiations remains protected by settlement privilege. Additionally, there may be concerns regarding safety, privacy and/or the integrity of an ongoing investigation. However, the parties should endeavour to disclose as much as possible to the trial judge to assist in his/her consideration of the joint submission.
2) Trial Judge Applies Public Interest Test
The trial judge should approach the joint submission on an “as is” basis, not assuming that the parties meant to include an additional term unless it is statutorily required. The public interest test applies regardless of whether the judge views the sentences as too high or too low.
3) Trial Judge May Make Further Inquiries
If not disclosed initially by the parties, the trial judge may make further inquiries of counsel into the circumstances leading to the joint submission, including any benefits obtained by the Crown or concessions made by the accused.
4) Trial Judge Provides an Opportunity for Further Submissions
If the judge is considering departing from the joint submission, he/she should advise counsel of his/her concerns and invite further submissions on those concerns.
5) Consider Providing an Opportunity to Withdraw Guilty Plea
If the trial judge’s concerns are not alleviated by further submissions, the trial judge may allow the accused to withdraw his/her guilty plea. The Supreme Court of Canada specifically declined to define the circumstances where such an opportunity should and should not be provided.
6) Provide Clear and Cogent Reasons for the Decision
If the trial judge rejects the joint submission, he/she should provide reasons that adequately explain why the proposed sentence was unacceptable to assist the parties in their resolution of future cases, and facilitate appellate review if necessary.
In Anthony-Cook, the accused had long-standing issues with mental health and substance abuse and a relatively lengthy criminal record. He punched a volunteer at a drop-in centre who fell, hit his head on the pavement and subsequently died. He was in pre-trial custody for 11 months.
The accused pled guilty to manslaughter after several days of trial. The Crown and defence made a joint submission proposing a further 18 months in custody with no period of probation afterwards. The trial judge followed the appropriate procedure, requesting further submissions and providing the accused with an opportunity to withdraw his guilty plea. The trial judge applied the fitness test and rejected the joint submission, instead imposing a custodial sentence of a further two years less a day and three years of probation.
The Supreme Court held that the trial judge erred in rejecting the joint submission. Applying the public interest test, the custodial term proposed, while low, was not so low as to bring the administration of justice into disrepute or be contrary to the public interest.
The impact of Anthony-Cook will be mixed depending on what test provincial courts were applying beforehand. In provinces where the public interest test was already being applied, such as Ontario and Newfoundland and Labrador, the impact will be to confirm the scope of the test and clarify the procedure to be followed by trial judges in applying it.
In provinces where the less stringent fitness test was being applied, such as British Columbia, Alberta, Saskatchewan and Nova Scotia, the decision will alter the calculus applied by the parties during resolution discussions. Defence counsel will be able to negotiate a resolution with greater certainty that a sentence jointly recommended by the Crown and the defence will be accepted by the Court. This removes a significant impediment to resolution of criminal matters before trial and will hopefully assist in alleviating delays in the criminal justice systems in these provinces.
R. v. Anthony-Cook, 2016 SCC 43
Date of Decision: October 21, 2016
 Delchev v. R., 2012 ONSC 2094 at para. 35.
 R. v. Lacasse, 2015 SCC 64.
 Anthony-Cook at para. 34.
 R. v. Tkachuk, 2001 ABCA 243 at para. 34