The Supreme Court Of Canada Clarifies The Test And Procedure For Joint Submissions On Sentencing

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.1

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.2 The Demonstrable Unfitness Test: Trial judges may depart from a joint submission if the sentence proposed is demonstrably unfit.3 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.4 The Hybrid Test: The fitness and public interest tests are functionally the same and may be used interchangeably.5 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...