Joint positions in Canada and the case of R. v. Anthony-Cook. A deferential view by the Supreme Court of Canada.

joint-position-r-v-anthony-cookEvery day in Canadian courts, hundreds, if not thousands, of guilty pleas are heard and processed through the judicial system. The vast majority of these guilty pleas are made upon “joint-recommendations” (in whole, or part) by the defence and Crown Attorneys for the judge to consider. These recommendations, often referred to as “joint-positions”, are essential to the proper functioning of the justice system.  Without them, there would be an endless series of dispute, contention, and litigation over what is appropriate on criminal cases.

Fortunately, prosecutors and defence lawyers are very often capable of reaching agreements on what an appropriate sentence may be for any set of facts.

Through experience, extensive discussions, considerations, and even quid-pro quos, these agreements are forged so that matters can be dealt with predictability and efficiency; while at the same time ensuring the public interest is protected.

The “Public Interest” test.  What it means to bring the administration of justice into disrepute.

Today, the Supreme Court of Canada clarified the law on joint sentencing recommendation in Canada in the case of R. v. Anthony-Cook. 

 The Court held that proper test is one that takes into account the public interest and should only be interfered where the sentence “would bring the administration of justice into disrepute, or otherwise contract to the public interest.”

In explaining what that means, the Court held:

[33]                          […] a joint submission will bring the administration of justice into disrepute or be contrary to the public interest if, despite the public interest considerations that support imposing it, it is so “markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of the criminal justice system”.  And, as stated by the same court in R. v. B.O.2, 2010 NLCA 19 (CanLII), at para. 56, when assessing a joint submission, trial judges should “avoid rendering a decision that causes an informed and reasonable public to lose confidence in the institution of the courts”.

[34]                          […]   a joint submission should not be rejected lightly […] 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.  This is an undeniably high threshold — and for good reason…

The need for a high threshold and deference for the proper functioning of the justice system.

This high threshold is not surprising.  Joint positions acts as a form of essential lubricant to a proper functioning justice system. They benefit society, victims, the accused, the Courts, counsel, and all parties involved.  In explaining the rationale, the Court further held:

[36]                          Accused persons benefit by pleading guilty in exchange for a joint submission on sentence (see D. Layton and M. Proulx, Ethics and Criminal Law (2nd ed. 2015), at p. 436).  The most obvious benefit is that the Crown agrees to recommend a sentence that the accused is prepared to accept.  This recommendation is likely to be more lenient than the accused might expect after a trial and/or contested sentencing hearing.  Accused persons who plead guilty promptly are able to minimize the stress and legal costs associated with trials.  Moreover, for those who are truly remorseful, a guilty plea offers an opportunity to begin making amends.  For many accused, maximizing certainty as to the outcome is crucial — and a joint submission, though not inviolable, offers considerable comfort in this regard.


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” (Cerasuolo, at para. 9).

[38]                          The Crown also relies on the certainty of joint submissions.  Agreements that are certain are attractive to the Crown “because there is less risk that what Crown counsel concludes is an appropriate resolution of the case in the public interest will be undercut” (Martin Committee Report, at p. 328).

[39]                          From the Crown’s perspective, the certain or near certain acceptance of joint submissions on sentence offers several potential benefits.  First, the guarantee of a conviction that comes with a guilty plea makes resolution desirable (Martin Committee Report, at pp. 285-86).  The Crown’s case may suffer from flaws, such as an unwilling witness, a witness of dubious worth, or evidence that is potentially inadmissible — problems that can lead to an acquittal.  By agreeing to a joint submission in exchange for a guilty plea, the Crown avoids this risk.  Second, the accused may have information or testimony to offer the Crown that can prove invaluable to other investigations or prosecutions.  But this information may not be forthcoming absent an agreement as to a joint submission.  Third, the Crown may consider it best to resolve a particular case for the benefit of victims or witnesses.  When an accused pleads guilty in exchange for a joint submission on sentence, victims and witnesses are spared the “the emotional cost of a trial” (R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161, at para. 111).  Moreover, victims may obtain some comfort from a guilty plea, given that it “indicates an accused’s acknowledgement of responsibility and may amount to an expression of remorse” (Edgar, at para. 111).

[40]                       […] guilty pleas save the justice system precious time, resources, and expenses, which can be channeled into other matters.  This is no small benefit.  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.

This judgment likely comes with welcoming arms to the defence and to Crowns who every day rely upon its effectiveness. It’s encouraging to see that the Supreme Court not only understood the practical beneficial effects, but also made it crystal clear that should be followed.