Defence Bar: Help Your Judge Help You

The standard upon which sufficiency of reasons is to be assessed in the criminal context is whether the reasons are inadequate and if so whether they prevent appellate review: 

R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para 13; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 20; R. v. Slatter, 2019 ONCA 807, 452 D.L.R. (4th) 4, at paras. 107-111.

 

The reasons must show why the trial judge made a certain decision:

 R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 15.

 

As R. v. Suganaqueb, 2022 ONCA 193 demonstrates, these standards for the sufficiency of reasons operate even when the accused consents to the imposition of an order. 

In Suganaqueb, the accused consented to the imposition of a dangerous offender designation (and an indeterminate sentence).  The sentencing judge was satisfied that the accused’s consent was informed and volitional.  

The accused thereafter appealed on the basis that the sentencing judge’s one-page reasons were insufficient and that a new dangerous offender hearing should be ordered in the circumstances.  The Crown agreed. Ultimately, so did the ONCA:

 

[5] …The reasons provide only a conclusory statement that the appellant be declared a dangerous offender without providing explanation for why the criteria for the designation are met. They also do not explain why the test to impose an indeterminate sentence has been met. The sentencing judge was obliged to provide those explanations notwithstanding the appellant’s consent.

[6]   The reasons, therefore, fail to meet the functional requirements for judicial reasons for both the designation and the sentencing phases of sentencing a dangerous offender.

 

We can extrapolate from the principles in Suganaqueb and related cases that a court’s acceptance of a Crown-defence joint position on sentence on a guilty plea requires more than the court’s rubber-stamping of that position.

As a practice point, defence counsel, in advancing a joint position on sentence, should clearly outline to the sentencing judge why the proposed sentence does not offend the administration of justice.  Consider directing the judge to case law which demonstrates that the sentence falls within the appropriate range or to triable issues which were not pursued in favour of a resolution by guilty plea, etc.  As stated in R. v. Anthony‑Cook, 2016 SCC 43 (CanLII), [2016] 2 SCR 204, at para 53,  "when faced with 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."  Such information not only allows the judge to be confident that the proposed plea is acceptable, but also assists the judge in articulating the legal justification for the sentence, beyond the mere fact that it was advanced on consent.


Written by Stuart O’Connell (Barrister/Solicitor). Toronto.

  

Location: Toronto, ON, Canada

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