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Focus: Anthony-Cook establishes public interest test

Focus On: Criminal Law
|Written By Shannon Kari

Judges who do not accept joint submissions on sentencing may be more likely to be overturned on appeal, as a result of a Supreme Court of Canada decision on the issue released this fall.

The Supreme Court of Canada ruling in R v. Anthony-Cook adopted what is known as the “public interest” test that must be met, for a trial judge to decline to impose a sentence that is based on a joint submission by the Crown and defence.

The court also hinted that even if there is not a joint submission, there is a threshold for a trial judge to meet if a sentence is going to be imposed that is outside of the range presented by both the prosecution and the defence.

“It is an accepted and entirely desirable practice for Crown and defence counsel to agree to a joint submission on sentence in exchange for a plea of guilty,” wrote Justice Michael Moldaver for the court, in the unanimous decision issued Oct. 21.

“Agreements of this nature are commonplace and vitally important to the well-being of our criminal justice system, as well as our justice system at large,” he explained.

As a result of the ruling, it is likely to be a “rare” occasion when a trial judge in Canada declines to accept a joint submission on sentence, says Erin Dann, a Toronto defence lawyer and co-counsel for the Criminal Lawyers’ Association (Ontario) in Anthony-Cook, where it was an intervener.

“The public interest test was our position and I think it helps provide certainty,” states Dann.

“I don’t think it will be impossible” for trial judges to decline to follow a joint submission, says Seth Weinstein, a partner at Greenspan Humphrey Weinstein in Toronto.

However, the Supreme Court ruling serves as a reminder about the obligations of trial judges to explain the reasoning in making this decision or they will be vulnerable on appeal, he says.

“I believe judges will think twice” before declining to follow a joint submission, says Weinstein, who is also on the board of directors of the CLA.

In its decision in Anthony-Cook, which was a B.C. case, the Supreme Court was weighing different legal tests for when a judge could decide not to follow a joint submission.

The test in western Canada was generally whether the proposed sentence was “fit” or “demonstrably unfit.”

In Ontario and some Maritime provinces, it has been the public interest test or, in other words, whether accepting a joint submission would bring the administration of justice into disrepute.

In adopting the public interest test, the Supreme Court explained why it was the preferred option.

“It best reflects the many benefits that joint submissions bring to the criminal justice system and the corresponding need for a high degree of certainty in them,” wrote Moldaver.

This test has effectively been the law in this province since a decision by the Ontario Court of Appeal in 2001 in R v. Cerasuolo, says Michael Dineen, an appellate lawyer at Dawe Dineen in Toronto.

Along with deciding that this was the best test, the Supreme Court also explained when a joint submission would be contrary to the public interest or bring the administration into disrepute.

“It has to be completely unacceptable,” says Dineen.

The Supreme Court stated in Anthony-Cook that if “reasonable and informed persons aware of all relevant circumstances” would believe that the “proper functioning of the justice system had broken down,” then this would be contrary to the public interest.

The definition of the reasonable and informed person is similar to the description set out by the Supreme Court in R v. St. Cloud last year when assessing the public interest in whether an accused should be granted bail, says Weinstein. 

“It is an informed person, but someone free of emotion, free of passion,” he says.

At the same time, this is more of a legal construct, similar to the classic reasonable person test, Dineen explains. “We are not really talking about the actual public,” he says.

All three lawyers agree that if a case has received media attention, there is an important role for the defence, the Crown and particularly the court to explain why the joint submission on sentence is appropriate.

“When there is media scrutiny, it is important to put as much as you can on the record,” says Dann.

“Ultimately, it also falls to the trial judge to explain in the reasons for sentence why it is appropriate,” says Weinstein.

A footnote in Anthony-Cook also suggests the principles in it could ultimately extend beyond joint submissions and to when a judge wants to impose a sentence outside the range presented by the parties.

“It may be that similar considerations would apply where a trial judge is, for instance, inclined to exceed the ceiling proposed by the Crown, but we leave that question for another day,” wrote Moldaver.

In both of these situations — declining to accept a joint submission or going outside the range — judges should first ask the Crown and defence to make further submissions before handing down a sentence, says Weinstein.

The “public interest” test may have been the accepted one in Ontario, but judges and justices of the peace have still not followed joint submissions, even in recent years, often resulting in appeals.

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