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.