On October 21, 2016, the Supreme Court of Canada released its unanimous decision R. v. Anthony-Cook, 2016 SCC 43.
The issue in the case was whether or not it was appropriate for the sentencing judge to impose a different sentence than was being recommended by both the Crown Attorney and the defence lawyer. When both lawyer agree on what the punishment should be, it is called a joint recommendation. Joint recommendations help the justice system work more efficiently because an accused person is prepared to plead guilty and save the Crown Attorney the burden of proving the offence at a trial (even if they have a strong case) and in exchange, the accused person gets some sense of certainty about what punishment they will receive. Having said that, there are no guarantees at sentencing, and the sentencing judge always has discretion to impose any fit and appropriate sentence he/she deems.
The Supreme Court outlined what the previous tests used called the fitness test or the public interest test before outlining what the proper test should now be at paragraph 32:
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.
The Court then outlined some principles for judges to consider when they have concerns about a joint recommendation:
- "trial judges should approach the joint submission on an “as-is” basis" (para. 51). So if the joint recommendation did not include a probation order, the judge should not decide to add it. But mandatory orders (like DNA or a weapons ban) can be added even if counsel failed to address them. They are, after all, mandatory.
- "trial judges should apply the public interest test when they are considering “jumping” or “undercutting” a joint submission" (para. 52). The same test should apply if the judge is considering imposing a sentence that is higher or something that is lower than the joint recommendation.
- "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" (para. 53). Judges should accept joint recommendations even if they think the sentence may be too light if the Crown Attorney gained more or if the accused lost more.
- "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" (para. 58). if the judge is not satisfied with the joint recommendation, he/she must allow both counsel to make further submissions to address the judge's concerns before deciding on the sentence.
- "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" (para. 59). This is especially appropriate where both counsel have proposed an illegal or improper sentence.
- "trial judges who remain unsatisfied by counsel’s submissions should provide clear and cogent reasons for departing from the joint submission" (para. 60). Clear and articulated reasons will help counsel determine how to proceed in future cases that are similar and is valuable if the case is appealed for the appeal court to review.
Ultimately, the Supreme Court imposed the sentence that was the joint recommendation of the two lawyers after concluding it passed the test for joint recommendations: it would not bring the administration of justice into disrepute and it was not contrary to the public interest.
Manitoba's previous leading case on joint recommendations was R. v. Sinclair, 2004 MBCA 48. Many of the same principles the Supreme Court have laid out are similar to what we had already. But it is interesting to note how the sentencing judge should consider allowing the accused to withdraw a guilty plea if the joint recommendation is not going to be followed. Also, approaching joint recommendations on an "as-is" basis is a slight change, perhaps. Overall, the Supreme Court emphasized the value of joint recommendations to the justice system and how sentencing judges should be careful about when and exactly how to impose a different sentence.
- Supreme Court of Canada Series: R. v. Jordan (Unreasonable Delay) (MichaelDyck.ca)
- Supreme Court of Canada Series: R. v. Safarzadeh-Markhali (Pre-Sentence Custody Credit) (MichaelDyck.ca)
- Supreme Court of Canada Series: R. v. St-Cloud (Tertiary Ground for Bail) (MichaelDyck.ca)
- Supreme Court of Canada Series: R. v. Nur (Mandatory Minimums for Firearms) (Michael Dyck.ca)
About the author
Michael Dyck is a partner at Rees & Dyck Criminal Defence. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients. To read more of his articles, please visit his partner's website TomRees.ca.