Departing from a Joint Submission on Sentence ("Jumping the Joint")

It is an accepted and entirely desirable practice for Crown and defence counsel to agree to a joint submission on sentence in exchange for a plea of guilty.  Agreements of this nature are commonplace and vitally important to the well-being of our criminal justice system, as well as our justice system at large.  Generally, such agreements are unexceptional and they are readily approved by trial judges without any difficulty.  Occasionally, however, a joint submission may appear to be unduly lenient, or perhaps unduly harsh, and trial judges are not obliged to go along with them.  In such cases, trial judges need a test against which to measure the acceptability of the joint submission.  The question is: What test?  That question was answered by the Supreme Court of Canada in R. v. Anthony-Cook, 2016 SCC 43.

The Legal Test for the Rejection of a Joint Sentencing Submission

Would the proposed sentence bring the administration of justice into disrepute, or is it otherwise contrary to the public interest.

Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance 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.  This is an undeniably high threshold.

Thus, a sentence which would otherwise be considered demonstrably unfit absent a joint submission may nonetheless be acceptable in the context of one.

PROPER PROCEDURE FOR COURTS TO FOLLOW

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.  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, even though it may appear to be unduly lenient

Joint Submission taken on an “as-is” Basis

 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.  With the exception of a mandatory order, if the parties have not asked for a particular order, the trial judge should assume that it was considered and excluded from the joint submission.

Counsel’s Opportunity to Make Additional Submissions

If the trial judge is not satisfied with the sentence proposed by counsel, fundamental fairness dictates that an opportunity be afforded to counsel to make further submissions in an attempt to address the judge’s concerns before the sentence is imposed.

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.

Withdrawal of Guilty Plea

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.

Court to Provide Clear and Cogent Reasons for “jumping the joint”

Trial judges who remain unsatisfied by counsel’s submissions should provide clear and cogent reasons for departing from the joint submission. 

PROPER PROCEDURE FOR COUNSEL TO FOLLOW

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 in order to give the judge a proper basis upon which to determine whether the joint submission should be accepted.

Appellate Intervention

An appellate court will not necessarily interfere with the sentence of the trial judge—where the trial judge fails to give counsel an opportunity to make further submissions on the proposed joint sentence—if the sentence is otherwise fit.

R. v. Rosenberg, 2017 ONCA 313.