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Criminal - Sentencing - Joint Submissions. R. v. Wesley
In R. v. Wesley (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, this from convictions for "two counts of second degree murder and one count of attempted murder".
Here the court considers the law when the trial judge varies from a joint sentencing submission, here where there was no guilty plea:The Anthony-Cook Issue
[66] In Anthony-Cook, the Supreme Court of Canada adopted a public interest test that sets a high threshold for departing from joint submissions on sentence agreed to in exchange for the accused entering a guilty plea.
[67] The public interest test stipulates that a sentencing judge should depart from a joint submission only “where the proposed sentence would bring the administration of justice into disrepute, or otherwise be contrary to the public interest”: at para. 5. The Court explained, at para. 34, that judges should reject a joint submission only where the proposed sentence is “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.”
[68] At footnote 1 of Anthony-Cook, the Supreme Court noted that its reasons did not address sentences flowing from plea agreements in which the parties are not in full agreement concerning the appropriate sentence. In its subsequent decision in R. v. Nahanee, 2022 SCC 37, 474 D.L.R. (4th) 34, at para. 31, the Court made it clear that to constitute a joint submission within the meaning of Anthony-Cook, the joint submission agreed upon in exchange for a guilty plea must cover every aspect of the sentence proposed to the court.
[69] In this case, the joint recommendation on sentence was made following a trial, not following a negotiated guilty plea. Nonetheless, as noted above, the Crown submits that the public interest test set out in Anthony-Cook applied at trial and informs the standard of review on appeal. The Crown contends that the same benefits of certainty and efficiency that prompted the Supreme Court to adopt a stringent test for departing from joint submissions following a negotiated guilty plea apply where a joint recommendation[5] on sentence is made following a trial. The Crown relies on R. v. Baptiste, 2021 QCCA 1064, 73 C.R. (7th) 321, in support of its position.
[70] I would not accept the Crown’s position for several reasons.
[71] First, the Supreme Court made it clear in Anthony-Cook that its decision related to joint submissions on sentence made in specific circumstances, namely, “when Crown and defence counsel agree to recommend a particular sentence to the judge in exchange for the accused entering a guilty plea”: at para. 2. Had the Supreme Court intended the stringent test it adopted in Anthony-Cook to apply more broadly, it could have said so. As there was no guilty plea in this case, on its face, the decision in Anthony-Cook does not apply.
[72] Second, in Anthony-Cook, the Supreme Court explained that the stringent test it adopted was necessary to a large extent because of the quid pro quo provided by accused persons in giving up their right to a trial and pleading guilty in exchange for a joint submission. In exchange for their plea of guilty, accused persons require a high degree of certainty that the joint submission agreed upon will be respected.
[73] At para. 37, the Supreme Court emphasized that “generally speaking accused persons will not give up their right to a trial on the merits, and all the procedural safeguards it entails, unless they have ‘some assurance that [trial judges] will in most instances honour agreements entered into by the Crown’” (citing R. v. Cerasuolo, 2001 CanLII 24172 (ON CA), 140 O.A.C. 114, 151 C.C.C. (3d) 445, at para. 9).
[74] At para. 41, the Supreme Court explained that a stringent test is necessary, because “for joint submissions to be possible, the parties must have a high degree of confidence that they will be accepted.” Further, “if joint submissions come to be seen as insufficiently certain”, the “accused in particular will be reluctant to forego a trial with its attendant safeguards, including the crucial ability to test the strength of the Crown’s case”.
[75] In Nahanee, at para. 31, the Supreme Court stated that “[j]oint submissions … offer certainty because of agreement in the form of a quid pro quo: the accused agrees to plead guilty in exchange for the Crown agreeing to recommend a specific sentence to the court that both the Crown and the accused find acceptable” (citing Anthony-Cook, at para. 36).
[76] No similar quid pro quo exists in cases involving a joint recommendation on sentence following a trial, even in a case such as this where the Crown and the defence engage in negotiations that lead to the joint recommendation. While both the Crown and the appellant arguably gave up the right to seek either a higher or lower parole ineligibility period at a contested sentencing hearing, such compromises do not approach the quid pro quo provided by an accused in foregoing the right to a trial.
[77] In particular, the parties give up little in such circumstances because their ability to make additional sentencing submissions in situations involving a joint sentencing recommendation following a trial are protected to a significant degree by the procedural fairness requirement that the trial judge adhere to most of the procedural guidelines set out at paras. 58 and 60 of Anthony-Cook, i.e., the requirements to notify counsel of any concerns, afford counsel the opportunity to address those concerns, and, if not satisfied, provide clear and cogent reasons for departing from the joint recommendation.
[78] I recognize, however, that as explained in Nahanee, at para. 59, such protection is not absolute because a want of procedural fairness will only lead to a remedy if it constitutes an error in principle that impacts the sentence, if an insufficiency of reasons precludes appellate review, or if the trial judge provided erroneous reasons for imposing the harsher sentence. Accordingly, as noted in Nahanee, at paras. 48 and 49, it is critical that both the Crown and an accused provide as much relevant information as possible at the sentencing hearing in support of their joint recommendation, and that they not rely on the opportunity of making further submissions “to pull a rabbit out of the hat.” If facets of the negotiations leading up to the joint recommendation are highly relevant to the reasonableness of the proposed sentence, counsel can find ways to make such matters known to the trial judge: Nahanee, at paras. 48 and 49.
[79] Third, I would not accept the Crown’s contention that the same considerations that prompted the Supreme Court to adopt a stringent test for departing from joint submissions following a negotiated guilty plea apply where a joint recommendation on sentence is made following a trial.
[80] I acknowledge that, in Anthony-Cook, the Supreme Court observed that many benefits flow from joint submissions agreed upon in exchange for a guilty plea. The benefits flow not only to the accused and the Crown, but also to victims, witnesses, counsel and the administration of justice generally: at para. 35. The benefits include a high degree of certainty concerning sentence for the accused and concerning a finding of guilt for the Crown, and an incentive for accused persons to co-operate in providing information that will assist in solving crime, avoiding emotional stress for victims and witnesses, and saving time and resources for the administration of justice as a whole: at paras. 39-40. The Crown relies largely on the potential loss of similar benefits in asserting that a stringent test for departing from a joint recommendation on sentence following a trial is necessary to preserve such benefits.
[81] I would not accept this submission. Simply put, I am not persuaded that a similarly stringent test is necessary or appropriate in relation to joint recommendations on sentence made following a trial. Although such joint recommendations also provide benefits to many of the participants and to the administration of justice generally, the level of benefit does not compare to that provided by a joint submission made in exchange for a guilty plea that avoids the necessity of a trial.
[82] A stringent test is not necessary because two factors contribute to the likelihood that both the Crown and accused persons will make joint recommendations on sentence following a trial such that the benefits that accrue from them are available even though the stringent Anthony-Cook test for departing from them does not apply.
[83] The first factor is the realistic likelihood that trial judges will generally accept such joint recommendations made by counsel following a trial. As was observed at para. 44 of Anthony-Cook, counsel are well placed to make reasonable and appropriate recommendations. The second factor is that even though the parties give up the right to make submissions for an alternative sentence at a contested hearing, as noted above, procedural fairness requires that the trial judge notify them of any concerns about their recommendation, provide them with an opportunity to make submissions addressing the concerns, and, if the trial judge chooses in the end to depart from the joint recommendation, provide clear and cogent reasons for doing so.
[84] A stringent test is not appropriate, because having heard the evidence at trial and heard or read any evidence presented on sentencing, trial judges are in a far better position than after a guilty plea to assess the fitness of a proposed sentence. It is ultimately trial judges and not counsel who bear the heavy responsibility of imposing a fit sentence. Absent the kind of quid pro quo present where the accused agrees to plead guilty in exchange for a joint submission, I am not persuaded that policy considerations justify constraining trial judges’ sentencing discretion by imposing the stringent Anthony-Cook test for departing from a joint recommendation made following a trial.
[85] Fourth, I do not consider Baptiste persuasive authority for holding that the Anthony-Cook test should be adopted as the threshold for departing from a joint recommendation on sentence following a trial. As a starting point, Baptiste did not involve a trial on the merits. Rather, it was agreed from the outset that the appellant’s Charter motion would be dispositive of the case. After the Charter motion was dismissed, the case proceeded based on admissions. Further, a major concern of the Baptiste court was the failure of the trial judge to put the appellant on notice of his difficulties with the sentence proposed, difficulties which the appeal court did not share. Finally, I note as well that, although the Baptiste court relied, at para. 71, on the benefits that accrue from an uncontested sentencing hearing, it acknowledged that those benefits “are different in magnitude from a guilty plea before trial”. As I have explained, I am not persuaded those benefits warrant adopting the Anthony-Cook test for departing from a joint recommendation made following a trial.
[86] Fifth, apart from the Quebec Court of Appeal, it does not appear that other Canadian appeal courts have applied the Anthony-Cook test to cases not involving a joint submission agreed upon in exchange for a guilty plea: e.g., R. v. Dunkers, 2018 BCCA 363, at paras. 42 and 44; R. v. Frampton, 2018 NLCA 23, at para. 28; and R. v. Sidhu, 2022 ABCA 66, 411 C.C.C. (3d) 329, at para. 67.
[87] Based on the foregoing reasons, I conclude that the joint recommendation on sentence made following the trial in this case was not an Anthony-Cook joint submission and that the trial judge was not bound by the stringent Anthony-Cook test in determining whether he should accept the joint recommendation. . 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.
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[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.
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Discussion
[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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