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Litigation Opinions
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Criminal - Sentencing - Joint Submissions

. R. v. M.V.

In R. v. M.V. (Ont CA, 2023) the Court of Appeal considered (and allowed) a sentencing appeal regarding sexual interference, and separate child luring and related, guilty pleas.

In these quotes the court comments on joint submissions regarding sentencing:
[35] In R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, at para. 2, Moldaver J., for the court, reaffirmed that joint submissions on sentence “are vital to the efficient operation of the criminal justice system.” They are an “accepted and acceptable” means of plea resolution that provides benefits to all participants in the criminal justice system: Anthony-Cook, at paras. 2, 35. Given the importance of providing certainty to enable plea negotiations, and the other advantages joint-position sentencing brings, judges are to exercise restraint before departing from joint sentencing submissions. Indeed, judges are not permitted to reject joint submissions even to avoid a sentence that could be set aside on appeal as an “unfit sentence”. They may reject joint submissions on sentence “only where the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system”: Anthony-Cook, at para. 42. This degree of restraint is required because even what would ordinarily be an unfit sentence may be acceptable in the context of a negotiated outcome, for example, where “the Crown may have difficulty proving [a very serious crime] because of deficiencies in its case”: Anthony-Cook, at para. 47. The trial judge will often not be privy to the basis for the joint sentencing submission.

[36] Safeguards are therefore built in before a judge can jump a joint submission on sentencing. If unsatisfied with the proposed sentence, the judge is required to notify the parties, giving them an opportunity to defend their joint position, and a chance to explain, to the extent they can do so within the bounds of privilege, why the joint position sentence should be accepted: Anthony-Cook, at paras. 53-58. The judge should also consider whether to permit the accused to withdraw their guilty plea: Anthony-Cook, at para. 59. If after this, the judge who has received the joint submission decides that they must reject the joint position they are to provide clear and cogent reasons for doing so: Anthony-Cook, at para. 60.
. R. v. Lush

In R. v. Lush (Ont CA, 2023) the Court of Appeal considered joint submissions for criminal sentencing, here where the judge varies it:
[3] With respect to the sentence appeal, the Crown and defence had agreed on a sentence of 2 years less a day, but did not agree on the application of Duncan credit. The sentencing judge jumped the submission to impose a sentence of 2 years and 3 months, on the expectation it would aid in the appellant’s rehabilitation. The sentencing judge did not advise the parties that he was contemplating this increase and did not invite submissions on the proposed increase. The Crown concedes that this was an error per R. v. Nahanee, 2022 SCC 37, 418 C.C.C. (3d) 417, at paras. 44-50.
. R. v. Harasuik

In R. v. Harasuik (Ont CA, 2023) the Court of Appeal reviewed a leading case on joint submissions on sentencing:
[2] The appeal is allowed. The sentencing judge should have acceded to the joint submission because it would not bring the administration of justice into disrepute, nor is it contrary to the public interest: R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204.


[13] In accordance with Anthony-Cook, the sentencing judge adjourned the sentencing hearing in order to give counsel the opportunity to make further submissions in support of the joint submission.



[21] In Anthony-Cook, the Supreme Court of Canada emphasized the vital role that joint submissions play in the criminal justice system. In an overburdened system, joint submissions are beneficial to the efficient administration of justice. They also provide the value of a high degree of certainty to the Crown, the accused, and victims. That is why the test for departing from a joint submission is so stringent. In Anthony-Cook, the Supreme Court held that a sentencing judge must not reject a joint submission merely because they believe it to be unfit, or even demonstrably unfit. Moldaver J. wrote, at para. 32: “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.” He further explained, at para. 34:
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.
[22] In R. v. Fuller, 2020 ONCA 115, this court emphasized that joint submissions should only be rejected in “rare cases”: para. 16. As the court said, at para. 16: “The effective and efficient operation of our criminal justice system relies on litigants enjoying a high degree of confidence that joint submissions will be accepted when guilty pleas are entered.”
. R. v. Wilson

In R. v. Wilson (Ont CA, 2023) the Court of Appeal considered the judicial standard for accepting joint submissions on sentencing:
[10] Trial judges should only reject a joint submission where the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest: R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204.


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Last modified: 07-11-23
By: admin