A New “Certainty” in Plea Bargaining

In R v Anthony-Cook[1], the Supreme Court in a unanimous judgement authored by Moldaver J. has settled the test to be applied where a judge is faced with a joint submission he or she has difficulty accepting.  This case has important implications for accused and their counsel in negotiating a Plea bargain with the Crown in criminal and quasi-criminal, regulatory prosecutions.

Joint submissions are the culmination of the plea bargaining process in criminal cases. They are the result of discussions and negotiations, often with the assistance of a judge conducting pre-trial conference. The Crown inevitably focuses on the seriousness of the allegations and the harm to the alleged victims. The defence will focus on numerous considerations including mitigating factors, circumstances of the accused, evidentiary problems with the Crown’s case and remedial steps taken by the accused. Sometimes the negotiations involve consideration of what’s often referred to as a “rehabilitative remand” where the accused is given time to undergo a restorative justice program, make restitution, or initiate procedures to prevent the harm caused from reoccurring.

Appellate courts routinely credit plea negotiations resulting in joint sentence submissions as essential to the proper functioning of the criminal justice system. As Moldaver J. puts it:

To the extent that they avoid trials, joint submissions on sentence permit our justice system to function more efficiently.  Indeed, I would argue that they permit it to function.  Without them, our justice system would be brought to its knees, and eventually collapse under its own weight.[2]

Plea bargaining often involves more than simply agreeing on a sentence submission. It can also focus on what charge an accused pleads guilty to – will the Crown agree to accept a plea to a lesser offence or withdraw some offences on the accused pleading guilty to others. Almost always, however, the defence objective is to arrive at an agreement acceptable to the accused on the sentence which will be jointly submitted to the judge. But before the agreement is finalized, the accused has to have some assurance that the judge will accept the joint submission.

Different courts of appeal across the country have applied different tests for rejecting joint submissions including whether the proposed sentence is “unfit”, “demonstratively unfit” or contrary to the “public interest”. In Antony-Cook the Supreme Court rejects the first two tests and decided that the proper test is a modified public interest test; since it best promotes the value of joint submissions to the justice system and the corresponding value of judicial certainty. Rejection of a joint submission should occur only when it 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. This is an undeniably high threshold — and for good reason.”[3]

Counsel, of course, as the Court points out, should be prepared to explain on the record the circumstances or considerations which both sides have agreed justify what on its face may appear to be a sentence unusually lenient or harsh. That is important not only for the edification of the trial judge but also for public confidence in the due administration of justice.

The Anthony-Cook decision has come closer than any of the previous appellate decisions in ensuring certainty in the results of plea bargaining. There is no doubt clients facing criminal charges need this degree of certainty if they forego their right to a trial and agree to enter a guilty plea. A client facing criminal charges will want to assess his or her chances of success at trial against the certainty of a negotiated resolution. Previously, counsel could not give the client a 100% guarantee that would happen. While this case moves the guarantee as close to 100% as possible, there is still absolute guarantee or we could simply do away with the need for a judge.

[1] R. v. Anthony-Cook, 2016 SCC 43

[2]  Supra; paragraph 40

[3] Supra; paragraph 34

Patrick McCann

Patrick McCann