Clients crave certainty. One method in which we can give our clients some measure of certainty is in approaching the Court having negotiated a joint sentencing position with Crown. These positions, called joint submissions, are often the result of protracted discussions where both Crown and Defence come to a mutually agreeable position to resolve the charges a client is facing.

 While joint submissions are a helpful tool in giving clients a sense of certainty they are not necessary a guaranteed outcome. Sections 606(1.1) of The Criminal Code requires that a court be satisfied that the accused knows several things, including that the court is not bound by any agreement on sentence.

Why, if a court is not bound by a joint submission, do we take the time and effort to create one?

In a recent decision, R. v. Anthony-Cook, 2016 SCC 43, the Supreme Court of Canada addressed both why we use joint submissions and when a court can reject one and impose a sentence of its own choosing.

At the outset of his reasons Justice Moldaver of the Supreme Court of Canada, himself a formal criminal defence lawyer, describes joint submissions as being both “essential” and “vital to the efficient operation of the criminal justice system”. Justice Moldaver then describes the importance and benefit of joint submissions for all parties in the justice system. For accused persons Justice Moldaver finds several benefits, but determines that for many “maximizing certainty as an outcome is crucial” and joint submissions provide a great deal of comfort by providing a measure of certainty.

In the context of these comments about the importance of joint submissions, and the certainty they provide, Justice Moldaver endorses a test for when a court can reject or depart from a joint submission. Given his comments the test is understandably a strict one, it is the “public interest test”.

Under the public interest test judges “should not depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute, or is otherwise not in the public interest.” While this statement trumpets some high ideals, what does it mean?

Justice Moldaver helpfully breaks this statement down into more accessible language when he states that joint submissions should not be rejected lightly, and rejection of one means the submission is “so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons…to believe that the proper function of the justice system had broken down.”

In the end, what can we take away from this decision?  First, joint submissions remain very important and valuable tools that can be used in appropriate cases.  Second, unless the position put forward is completely unhinged accused persons can take a measure of comfort in the certainty provided by a joint submission. While courts maintain the jurisdiction to reject a joint submission, the exercise of that jurisdiction is now very limited.

Lance McClean