Plea Bargains: Difference between revisions
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The proper standard to apply to a JR is the "public interest test".<ref> | The proper standard to apply to a JR is the "public interest test".<ref> | ||
R v Anthony-Cook, [http://canlii.ca/t/gv7bk 2016 SCC 43] (CanLII){{perSCC|Moldaver J}} at para 32< | ''R v Anthony-Cook'', [http://canlii.ca/t/gv7bk 2016 SCC 43] (CanLII){{perSCC|Moldaver J}} at para 32<br> | ||
</ref> | </ref> | ||
| Line 13: | Line 13: | ||
===Public Interest Test=== | ===Public Interest Test=== | ||
Where there is a joint recommendation or plea deal put before a judge the "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".<ref> | Where there is a joint recommendation or plea deal put before a judge the "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".<ref> | ||
R v Anthony-Cook, [http://canlii.ca/t/gv7bk 2016 SCC 43] (CanLII){{perSCC|Moldaver J}} at | ''R v Anthony-Cook'', [http://canlii.ca/t/gv7bk 2016 SCC 43] (CanLII){{perSCC|Moldaver J}}{{at|32}} <br> | ||
</ref> | </ref> | ||
The use of the "less stringent" standards of the "fitness test" or "demonstrably unfit" test are now defunct.<ref> | The use of the "less stringent" standards of the "fitness test" or "demonstrably unfit" test are now defunct.<ref> | ||
See | See {{supra1|Anthony-Cook}}<br> | ||
</ref> | </ref> | ||
This further eliminates the use of a blended test combining the unfitness and public interest tests.<ref> | This further eliminates the use of a blended test combining the unfitness and public interest tests.<ref> | ||
See | See {{supra1|Anthony-Cook}}<br> | ||
R v Flanagan, [http://canlii.ca/t/fqzg7 2012 SKCA 45] (CanLII), 393 Sask.R. 126{{perSKCA|Richards JA}}{{at|12}} citing both unfitness and public interests test<br> | |||
</ref> | </ref> | ||
The rationale behind allowing JRs is to protect court resources which would otherwise be overwhelmed under the volume of trials required. However, some have brought this rationale into question.<ref> | The rationale behind allowing JRs is to protect court resources which would otherwise be overwhelmed under the volume of trials required. However, some have brought this rationale into question.<ref> | ||
R v Keeping, [http://canlii.ca/t/g0zn3 2013 CanLII 64708] (NL PC){{perNLPC|Porter J}} | |||
</ref> | </ref> | ||
A JR does not need to encompass all aspects of the sentence. There can be a joint recommendation on part of a sentence, such as the form of penalty, while still keeping aspects of the penalty in dispute, such as the length of the penalty, conditions associated with the penalty, or ancillary orders.<ref>e.g. | A JR does not need to encompass all aspects of the sentence. There can be a joint recommendation on part of a sentence, such as the form of penalty, while still keeping aspects of the penalty in dispute, such as the length of the penalty, conditions associated with the penalty, or ancillary orders.<ref>e.g. R v Parsons, [http://canlii.ca/t/fvf3f 2012 CanLII 81320] (NL SCTD){{perNLSC|Goulding J}} - length of CSO and ancillary orders in dispute alone</ref> | ||
A joint submission often indicates a lower range of sentence.<ref> | A joint submission often indicates a lower range of sentence.<ref> | ||
R v Kane [http://canlii.ca/t/fs972 2012 NLCA 53] (CanLII){{perNLCA|Welsh JA}}</ref> The motivation for an agreement is often due to a weak aspect in the Crown's case or the risk of the judge giving a higher penalty than what would be sought by defence without an agreement. | R v Kane [http://canlii.ca/t/fs972 2012 NLCA 53] (CanLII){{perNLCA|Welsh JA}}</ref> The motivation for an agreement is often due to a weak aspect in the Crown's case or the risk of the judge giving a higher penalty than what would be sought by defence without an agreement. | ||
A joint recommendation may even be accepted where it is more lenient than the lower end of the normal range.<ref>R v Oake [http://canlii.ca/t/28pd1 2010 NLCA 19] (CanLII){{perNLCA|Rowe JA}} at | A joint recommendation may even be accepted where it is more lenient than the lower end of the normal range.<ref>R v Oake [http://canlii.ca/t/28pd1 2010 NLCA 19] (CanLII){{perNLCA|Rowe JA}}{{at|64}}</ref> | ||
Sentences arising from a joint recommendation "have little or no precedential value."<ref> | Sentences arising from a joint recommendation "have little or no precedential value."<ref> | ||
R v Johnston, [http://canlii.ca/t/fmqxj 2011 NLCA 56] (CanLII){{perNLCA|White JA}}<br> | |||
R v Johnson, [http://canlii.ca/t/2ct1p 2010 ABQB 546] (CanLII){{perABQB|Sullivan J}}<br> | |||
R v Benlolo [http://canlii.ca/t/1nj8l 2006 CanLII 19284] (ON CA), (2006), 81 O.R. (3d) 440 (C.A.){{perONCA|Feldman JA}}<br> | R v Benlolo [http://canlii.ca/t/1nj8l 2006 CanLII 19284] (ON CA), (2006), 81 O.R. (3d) 440 (C.A.){{perONCA|Feldman JA}}<br> | ||
</ref> | </ref> | ||
| Line 48: | Line 48: | ||
Proper considerations when the adopt a joint submission should include the following: | Proper considerations when the adopt a joint submission should include the following: | ||
# the joint submission should be evaluated "on an 'as-is' basis" meaning that all individual terms, conditions and orders that were either included omitted should be considered an expression of the intention of the parties and should only be varied individually on the "public interest" standard.<ref> | # the joint submission should be evaluated "on an 'as-is' basis" meaning that all individual terms, conditions and orders that were either included omitted should be considered an expression of the intention of the parties and should only be varied individually on the "public interest" standard.<ref> | ||
{{supra1|Anthony-Cook}} at para 51<Br> | |||
</ref> | </ref> | ||
# The public interest test is applied anytime the judge is considering to "jump" or "undercut" a joint recommendation.<ref> | # The public interest test is applied anytime the judge is considering to "jump" or "undercut" a joint recommendation.<ref> | ||
{{supra1|Anthony-Cook}} at para 52<Br> | |||
</ref> | </ref> | ||
# the judge may need to know about the circumstances leading to the joint recommendation where it is contentious. The Judge may consider the benefits obtained by the Crown and the concessions made by the defence as factors when the sentence looks otherwise unduly lenient.<ref> | # the judge may need to know about the circumstances leading to the joint recommendation where it is contentious. The Judge may consider the benefits obtained by the Crown and the concessions made by the defence as factors when the sentence looks otherwise unduly lenient.<ref> | ||
{{supra1|Anthony-Cook}} at para 53<Br> | |||
</ref> | </ref> | ||
'''Summation of the Facts'''<br> | '''Summation of the Facts'''<br> | ||
Counsel are obliged to give a full description and account "of the circumstances of the offender, the offence, and the joint submission". They must ensure that they "amply justify their position on the facts of the case as presented in open court".<ref> | Counsel are obliged to give a full description and account "of the circumstances of the offender, the offence, and the joint submission". They must ensure that they "amply justify their position on the facts of the case as presented in open court".<ref> | ||
{{supra1|Anthony-Cook}} at para 54<Br> | |||
</ref> | </ref> | ||
Exceptions to this obligation exist where there are "safety or privacy concerns", or where an ongoing investigation may be jeopardized. Instead, counsel must consider other alternatives to to communicate these considerations to the court.<ref> | Exceptions to this obligation exist where there are "safety or privacy concerns", or where an ongoing investigation may be jeopardized. Instead, counsel must consider other alternatives to to communicate these considerations to the court.<ref> | ||
{{supra1|Anthony-Cook}} at para 56<Br> | |||
</ref> | </ref> | ||
| Line 69: | Line 69: | ||
Where the judge is considering to undercut a joint recommendation, different considerations may be taken given that the concerns do not include fair trial rights or undermine the confidence in the certainty of a plea. Rather, the judge should take special care where the accused is self-represented or where there is "power imbalance" between the parties, which may undermine the public interest. | Where the judge is considering to undercut a joint recommendation, different considerations may be taken given that the concerns do not include fair trial rights or undermine the confidence in the certainty of a plea. Rather, the judge should take special care where the accused is self-represented or where there is "power imbalance" between the parties, which may undermine the public interest. | ||
<ref> | <ref> | ||
{{supra1|Anthony-Cook}} at para 52<br> | |||
</ref> | </ref> | ||
'''Illegal Terms of a Joint Recommendations'''<br> | '''Illegal Terms of a Joint Recommendations'''<br> | ||
Where a joint recommendation does not include mandatory terms or orders, or is otherwise illegal, the public interest cannot justify supporting it.<ref> | Where a joint recommendation does not include mandatory terms or orders, or is otherwise illegal, the public interest cannot justify supporting it.<ref> | ||
{{supra1|Anthony-Cook}}{{at|51}} | |||
</ref> | </ref> | ||
'''Notice of Disagreement and Option to Withdraw Guilty Plea'''<br> | '''Notice of Disagreement and Option to Withdraw Guilty Plea'''<br> | ||
Where a judge is concerned with the adoption of the plea agreement, they must notify counsel and give them an opportunity to provide further submissions. <ref> | Where a judge is concerned with the adoption of the plea agreement, they must notify counsel and give them an opportunity to provide further submissions. <ref> | ||
{{supra1|Anthony-Cook}}{{at|58}}<br> | |||
</ref> | </ref> | ||
The judge may also want to provide counsel with an opportunity to apply to withdraw the guilty plea.<ref> | The judge may also want to provide counsel with an opportunity to apply to withdraw the guilty plea.<ref> | ||
{{supra1|Anthony-Cook}} at para 58 and 59 | |||
</ref> | </ref> | ||
'''Obligation to Provide Reasons for Departing from Recommendation'''<br> | '''Obligation to Provide Reasons for Departing from Recommendation'''<br> | ||
Where the judge ultimately decides to reject the recommendation, the judge must provide "clear and cogent reasons" for doing so.<ref> | Where the judge ultimately decides to reject the recommendation, the judge must provide "clear and cogent reasons" for doing so.<ref> | ||
{{supra1|Anthony-Cook}} at para 60 | |||
</ref> | </ref> | ||
| Line 95: | Line 95: | ||
A joint recommended sentence is a sentence for which the courts do not readily overturn. <ref> | A joint recommended sentence is a sentence for which the courts do not readily overturn. <ref> | ||
''R v JWIB'', [http://canlii.ca/t/58s1 2003 MBCA 92] (CanLII){{perMBCA|Freedman JA}}<br> | ''R v JWIB'', [http://canlii.ca/t/58s1 2003 MBCA 92] (CanLII){{perMBCA|Freedman JA}}<br> | ||
R v Pashe (S.J.) [http://canlii.ca/t/1pfkc 1995 CanLII 6256] (MB C.A.){{perMBCA|Huband JA and Twaddle JA}} </ref> | ''R v Pashe (S.J.)'' [http://canlii.ca/t/1pfkc 1995 CanLII 6256] (MB C.A.){{perMBCA|Huband JA and Twaddle JA}} </ref> | ||
The court may only do so where the sentence in not within a reasonably appropriate range for the circumstances.<ref> | The court may only do so where the sentence in not within a reasonably appropriate range for the circumstances.<ref> | ||
R v Smith, [http://canlii.ca/t/1jj1t 2004 BCCA 657] (CanLII){{perBCCA|Newbury JA}}<br> | |||
R v Gartner, [http://canlii.ca/t/2fptk 2010 BCCA 600] (CanLII){{perBCCA|Hall JA}}<br> | |||
R v Wickstrom, [http://canlii.ca/t/flrqw 2011 BCSC 745] (CanLII){{perBCSC|Bernard J}}<br> | |||
R v Cerasuolo [http://canlii.ca/t/1fbn2 2001 CanLII 24172] (ON CA){{perONCA|Finlayson JA}}<br> | ''R v Cerasuolo'', [http://canlii.ca/t/1fbn2 2001 CanLII 24172] (ON CA){{perONCA|Finlayson JA}}<br> | ||
''R v DeSousa'', [http://canlii.ca/t/fr17k 2012 ONCA 254] (CanLII){{perONCA|Doherty JA}}<br> | ''R v DeSousa'', [http://canlii.ca/t/fr17k 2012 ONCA 254] (CanLII){{perONCA|Doherty JA}}<br> | ||
</ref> The judge must give reasons for not adopting a joint recommendation. | </ref> The judge must give reasons for not adopting a joint recommendation. | ||
A judge should give serious consideration to a joint sentencing proposal.<ref>''R v GWC'', [http://canlii.ca/t/5rmx 2000 ABCA 333] (CanLII){{perABCA|Berger JA}} at | A judge should give serious consideration to a joint sentencing proposal.<ref> | ||
''R v GWC'', [http://canlii.ca/t/5rmx 2000 ABCA 333] (CanLII){{perABCA|Berger JA}}{{at|17}}</ref> | |||
There is less weight given to "joint recommendations" that do not involve a "quid pro quo" (i.e. some reduced recommendation on sentence).<ref> | There is less weight given to "joint recommendations" that do not involve a "quid pro quo" (i.e. some reduced recommendation on sentence).<ref>R v Wolonciej, [http://canlii.ca/t/fp038 2011 MBCA 91] (CanLII){{perMBCA|Monnin and Steel JJA}} (3:0){{at|10}}</ref> | ||
Likewise, where the accused was without counsel less deference is given.<ref> | Likewise, where the accused was without counsel less deference is given.<ref>R v Bambrick, [http://canlii.ca/t/fpbjm 2011 NLCA 79] (CanLII){{perNLCA|Welsh JA}}{{at|14}}</ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
| Line 113: | Line 114: | ||
==="Joint Recommendation" After Trial=== | ==="Joint Recommendation" After Trial=== | ||
A common recommendation on sentence by both counsel after trial is not a "joint submission" as there was no exchange of sentence for a guilty plea. Consequently, the deference accorded to joint submissions is ''not'' required.<ref> | A common recommendation on sentence by both counsel after trial is not a "joint submission" as there was no exchange of sentence for a guilty plea. Consequently, the deference accorded to joint submissions is ''not'' required.<ref> | ||
R v Dunkers, [http://canlii.ca/t/hv8qj 2018 BCCA 363] (CanLII){{perBCCA|MacKenzie JA}}{{ats|35 to 44}}<br> | |||
</ref> | </ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
| Line 119: | Line 120: | ||
===When Not Followed=== | ===When Not Followed=== | ||
If a judge has reservations to adopt a joint recommendation it should allow counsel an opportunity to respond.<ref> | If a judge has reservations to adopt a joint recommendation it should allow counsel an opportunity to respond.<ref> | ||
''R v GWC'', [http://canlii.ca/t/5rmx 2000 ABCA 333] (CanLII){{perABCA|Berger JA}} at | ''R v GWC'', [http://canlii.ca/t/5rmx 2000 ABCA 333] (CanLII){{perABCA|Berger JA}}{{at|26}} | ||
</ref> | </ref> | ||
Likewise, where a judge is looking to go beyond the range set by counsel, the judge should equally provide notice to the parties before going above or below the range.<ref> | Likewise, where a judge is looking to go beyond the range set by counsel, the judge should equally provide notice to the parties before going above or below the range.<ref> | ||
R v Hood, [http://canlii.ca/t/flqvp 2011 ABCA 169] (CanLII){{perABCA|Martin JA}}{{at|14}}<br> | |||
R v Abel, [http://canlii.ca/t/fm1mv 2011 NWTCA 4] (CanLII){{TheCourt}}{{at|23}}<br> | |||
R v Burback, [http://canlii.ca/t/fq14b 2012 ABCA 30] (CanLII){{perABCA|Conrad J}}<br> | |||
</ref> | </ref> | ||
Similarly, where a judge wishes to impose a condition that was not contemplated by either party nor could it have been easily foreseen, then the judge should also provide notice before doing so.<ref> | Similarly, where a judge wishes to impose a condition that was not contemplated by either party nor could it have been easily foreseen, then the judge should also provide notice before doing so.<ref> | ||
R v Beal, [http://canlii.ca/t/2fk7g 2011 ABCA 35] (CanLII){{TheCourtABCA}} | |||
</ref> | </ref> | ||
A judge adding probation on a joint recommendation without notice can be set aside. | A judge adding probation on a joint recommendation without notice can be set aside. | ||
<ref> | <ref> | ||
R v Wickstrom, [http://canlii.ca/t/flrqw 2011 BCSC 745] (CanLII){{perBCSC|Bernard J}} | |||
</ref> | </ref> | ||
A judge need not accept a joint recommendation that is "facially disproportionate" to the offence.<ref> | A judge need not accept a joint recommendation that is "facially disproportionate" to the offence.<ref> | ||
R v Gibson, [http://canlii.ca/t/gg38b 2015 ABCA 41] (CanLII){{TheCourtABCA}}{{at|17}}<br> | |||
</ref> | </ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
| Line 148: | Line 149: | ||
===Other Issues=== | ===Other Issues=== | ||
Where the accused misapprehended the joint recommendation, it can be grounds for a successful appeal of a sentence.<ref> | Where the accused misapprehended the joint recommendation, it can be grounds for a successful appeal of a sentence.<ref> | ||
e.g. | e.g. R v Kinney, [http://canlii.ca/t/fnk54 2011 SKCA 122] (CanLII){{perSKCA|Caldwell JA}} | ||
</ref> | </ref> | ||
Where an offender is unaware of a significant consequence of a particular sentence agreed upon, such as deportation without appeal, the court may reopen the consideration of sentence.<ref> | Where an offender is unaware of a significant consequence of a particular sentence agreed upon, such as deportation without appeal, the court may reopen the consideration of sentence.<ref>R v Jamieson, [http://canlii.ca/t/fpf0n 2011 NSCA 122] (CanLII){{perNSCA|Saunders JA}}</ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
| Line 157: | Line 158: | ||
{{seealso|Guilty Plea|Abuse of Process}} | {{seealso|Guilty Plea|Abuse of Process}} | ||
If the Crown renegs on a plea deal on sentence, the Defence may make application to withdraw the guilty plea.<ref> | If the Crown renegs on a plea deal on sentence, the Defence may make application to withdraw the guilty plea.<ref> | ||
R v M | ''R v M (R.N.-Z.)'', [http://canlii.ca/t/1pl1d 2006 CanLII 32999] (ON S.C.){{perONSC|Hill J}}<br> | ||
R v Chen, [http://canlii.ca/t/25tlr 2009 ONCJ 453] (CanLII){{perONCJ|Fairgrieve J}}<br> | |||
see also: | see also: R v Tallon, [http://canlii.ca/t/1g2sh 2003 CanLII 27268] (ON C.A.){{perONCA|Rosenberg JA}}<br> | ||
</ref> It may also be grounds for a stay of proceedings due to [[Abuse of Process|abuse of process]]. | </ref> It may also be grounds for a stay of proceedings due to [[Abuse of Process|abuse of process]]. | ||
| Line 165: | Line 166: | ||
==Using Plea Bargaining as Evidence== | ==Using Plea Bargaining as Evidence== | ||
Generally, a judge should not admit evidence surrounding a plea bargain unless it is in relation to a joint recommended sentence or whether it goes to the guilt or innocence of the accused.<ref> | Generally, a judge should not admit evidence surrounding a plea bargain unless it is in relation to a joint recommended sentence or whether it goes to the guilt or innocence of the accused.<ref> | ||
R v Bremner, [http://canlii.ca/t/1q5gz 2006 NSSC 367] (CanLII){{perNSSC|Goodfellow J}}{{ats|1 to 9}}<br> | |||
</ref> This can include questions of credibility of a co-accused who was offered a lesser sentence for cooperation.<ref> | </ref> This can include questions of credibility of a co-accused who was offered a lesser sentence for cooperation.<ref> | ||
Bremner at | {{ibid1|Bremner}}{{at|6}}<br> | ||
</ref> | </ref> | ||
Once a proposal for settlement is rejected and a trial is held, "previous negotiations [become] irrelevant", including for the purpose of sentencing.<ref> | Once a proposal for settlement is rejected and a trial is held, "previous negotiations [become] irrelevant", including for the purpose of sentencing.<ref> | ||
Bremner at para 8<br> | Bremner at para 8<br> | ||
R v Howell, [http://canlii.ca/t/1mq10 1995 CanLII 4282] (NS CA), (1996), 103 CCC (3d) 302{{perNSCA|Chipman JA}} at para 100<br> | |||
See | See R v Pabani, [http://canlii.ca/t/231td 1994 CanLII 8723] (ON CA), (1994), 29 C.R. (4th) 364{{perONCA|Finlayson JA}}<br> | ||
''R v White'' (1982), 39 Nfld. and P.E.I.R. 196 (Nfld. C.A.) {{NOCANLII}}<br> | ''R v White'' (1982), 39 Nfld. and P.E.I.R. 196 (Nfld. C.A.) {{NOCANLII}}<br> | ||
</ref> | </ref> | ||
Revision as of 09:55, 13 January 2019
Introduction
A plea bargain is an agreement between the Crown and defence whereby the defence agrees to plead guilty to particular offences in exchange for a particular proposal on sentence. If the defence accepts the offer on sentence, the agreement is put the judge as a jointly recommended sentence.
Joint Recommendations
A joint recommendation (JR) is an agreement on penalty between the Crown and Defence to present a single penalty recommendation that the judge is asked to adopt.
The proper standard to apply to a JR is the "public interest test".[1]
- ↑
R v Anthony-Cook, 2016 SCC 43 (CanLII), per Moldaver J at para 32
Public Interest Test
Where there is a joint recommendation or plea deal put before a judge the "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".[1]
The use of the "less stringent" standards of the "fitness test" or "demonstrably unfit" test are now defunct.[2] This further eliminates the use of a blended test combining the unfitness and public interest tests.[3]
The rationale behind allowing JRs is to protect court resources which would otherwise be overwhelmed under the volume of trials required. However, some have brought this rationale into question.[4]
A JR does not need to encompass all aspects of the sentence. There can be a joint recommendation on part of a sentence, such as the form of penalty, while still keeping aspects of the penalty in dispute, such as the length of the penalty, conditions associated with the penalty, or ancillary orders.[5]
A joint submission often indicates a lower range of sentence.[6] The motivation for an agreement is often due to a weak aspect in the Crown's case or the risk of the judge giving a higher penalty than what would be sought by defence without an agreement.
A joint recommendation may even be accepted where it is more lenient than the lower end of the normal range.[7]
Sentences arising from a joint recommendation "have little or no precedential value."[8]
A "low end" joint recommendation can be based upon the "potential frailties of the Crown's case in the event of trial".[9]
Process of Evaluating Joint Recommendations
Proper considerations when the adopt a joint submission should include the following:
- the joint submission should be evaluated "on an 'as-is' basis" meaning that all individual terms, conditions and orders that were either included omitted should be considered an expression of the intention of the parties and should only be varied individually on the "public interest" standard.[10]
- The public interest test is applied anytime the judge is considering to "jump" or "undercut" a joint recommendation.[11]
- the judge may need to know about the circumstances leading to the joint recommendation where it is contentious. The Judge may consider the benefits obtained by the Crown and the concessions made by the defence as factors when the sentence looks otherwise unduly lenient.[12]
Summation of the Facts
Counsel are obliged to give a full description and account "of the circumstances of the offender, the offence, and the joint submission". They must ensure that they "amply justify their position on the facts of the case as presented in open court".[13]
Exceptions to this obligation exist where there are "safety or privacy concerns", or where an ongoing investigation may be jeopardized. Instead, counsel must consider other alternatives to to communicate these considerations to the court.[14]
Undercutting a Recommendation
Where the judge is considering to undercut a joint recommendation, different considerations may be taken given that the concerns do not include fair trial rights or undermine the confidence in the certainty of a plea. Rather, the judge should take special care where the accused is self-represented or where there is "power imbalance" between the parties, which may undermine the public interest.
[15]
Illegal Terms of a Joint Recommendations
Where a joint recommendation does not include mandatory terms or orders, or is otherwise illegal, the public interest cannot justify supporting it.[16]
Notice of Disagreement and Option to Withdraw Guilty Plea
Where a judge is concerned with the adoption of the plea agreement, they must notify counsel and give them an opportunity to provide further submissions. [17]
The judge may also want to provide counsel with an opportunity to apply to withdraw the guilty plea.[18]
Obligation to Provide Reasons for Departing from Recommendation
Where the judge ultimately decides to reject the recommendation, the judge must provide "clear and cogent reasons" for doing so.[19]
- ↑
R v Anthony-Cook, 2016 SCC 43 (CanLII), per Moldaver J, at para 32
- ↑
See Anthony-Cook, supra
- ↑
See Anthony-Cook, supra
R v Flanagan, 2012 SKCA 45 (CanLII), 393 Sask.R. 126, per Richards JA, at para 12 citing both unfitness and public interests test
- ↑ R v Keeping, 2013 CanLII 64708 (NL PC), per Porter J
- ↑ e.g. R v Parsons, 2012 CanLII 81320 (NL SCTD), per Goulding J - length of CSO and ancillary orders in dispute alone
- ↑ R v Kane 2012 NLCA 53 (CanLII), per Welsh JA
- ↑ R v Oake 2010 NLCA 19 (CanLII), per Rowe JA, at para 64
- ↑
R v Johnston, 2011 NLCA 56 (CanLII), per White JA
R v Johnson, 2010 ABQB 546 (CanLII), per Sullivan J
R v Benlolo 2006 CanLII 19284 (ON CA), (2006), 81 O.R. (3d) 440 (C.A.), per Feldman JA
- ↑
R v Bungay-Lloyd, 2016 NSSC 110 (CanLII), per Chipman J at para 18
- ↑
Anthony-Cook, supra at para 51
- ↑
Anthony-Cook, supra at para 52
- ↑
Anthony-Cook, supra at para 53
- ↑
Anthony-Cook, supra at para 54
- ↑
Anthony-Cook, supra at para 56
- ↑
Anthony-Cook, supra at para 52
- ↑ Anthony-Cook, supra, at para 51
- ↑
Anthony-Cook, supra, at para 58
- ↑ Anthony-Cook, supra at para 58 and 59
- ↑ Anthony-Cook, supra at para 60
Deference
A joint recommended sentence is a sentence for which the courts do not readily overturn. [1] The court may only do so where the sentence in not within a reasonably appropriate range for the circumstances.[2] The judge must give reasons for not adopting a joint recommendation.
A judge should give serious consideration to a joint sentencing proposal.[3]
There is less weight given to "joint recommendations" that do not involve a "quid pro quo" (i.e. some reduced recommendation on sentence).[4] Likewise, where the accused was without counsel less deference is given.[5]
- ↑
R v JWIB, 2003 MBCA 92 (CanLII), per Freedman JA
R v Pashe (S.J.) 1995 CanLII 6256 (MB C.A.), per Huband JA and Twaddle JA - ↑
R v Smith, 2004 BCCA 657 (CanLII), per Newbury JA
R v Gartner, 2010 BCCA 600 (CanLII), per Hall JA
R v Wickstrom, 2011 BCSC 745 (CanLII), per Bernard J
R v Cerasuolo, 2001 CanLII 24172 (ON CA), per Finlayson JA
R v DeSousa, 2012 ONCA 254 (CanLII), per Doherty JA
- ↑ R v GWC, 2000 ABCA 333 (CanLII), per Berger JA, at para 17
- ↑ R v Wolonciej, 2011 MBCA 91 (CanLII), per Monnin and Steel JJA (3:0), at para 10
- ↑ R v Bambrick, 2011 NLCA 79 (CanLII), per Welsh JA, at para 14
"Joint Recommendation" After Trial
A common recommendation on sentence by both counsel after trial is not a "joint submission" as there was no exchange of sentence for a guilty plea. Consequently, the deference accorded to joint submissions is not required.[1]
- ↑
R v Dunkers, 2018 BCCA 363 (CanLII), per MacKenzie JA, at paras 35 to 44
When Not Followed
If a judge has reservations to adopt a joint recommendation it should allow counsel an opportunity to respond.[1] Likewise, where a judge is looking to go beyond the range set by counsel, the judge should equally provide notice to the parties before going above or below the range.[2] Similarly, where a judge wishes to impose a condition that was not contemplated by either party nor could it have been easily foreseen, then the judge should also provide notice before doing so.[3]
A judge adding probation on a joint recommendation without notice can be set aside. [4]
A judge need not accept a joint recommendation that is "facially disproportionate" to the offence.[5]
- ↑ R v GWC, 2000 ABCA 333 (CanLII), per Berger JA, at para 26
- ↑
R v Hood, 2011 ABCA 169 (CanLII), per Martin JA, at para 14
R v Abel, 2011 NWTCA 4 (CanLII), per curiam, at para 23
R v Burback, 2012 ABCA 30 (CanLII), per Conrad J
- ↑ R v Beal, 2011 ABCA 35 (CanLII), per curiam
- ↑ R v Wickstrom, 2011 BCSC 745 (CanLII), per Bernard J
- ↑
R v Gibson, 2015 ABCA 41 (CanLII), per curiam, at para 17
Notice to Victims
Section 606 (4.1) requires the judge after accepting a guilty plea for serious personal injury offences to inquire of the prosecutor whether "reasonable steps were taken to inform the victims of the agreement". Failing to take reasonable steps will not necessarily stop sentencing but will require the prosecutor to take steps at a later point to inform the victims.
Where the offence is prosecuted by indictment and punishable by imprisonment of 5 years or more, s. 606(4.2) requires the judge shall inquire whether any victims notified them of their desire to be informed of the agreement, and if so, whether reasonable steps were taken to inform them.
Other Issues
Where the accused misapprehended the joint recommendation, it can be grounds for a successful appeal of a sentence.[1] Where an offender is unaware of a significant consequence of a particular sentence agreed upon, such as deportation without appeal, the court may reopen the consideration of sentence.[2]
- ↑ e.g. R v Kinney, 2011 SKCA 122 (CanLII), per Caldwell JA
- ↑ R v Jamieson, 2011 NSCA 122 (CanLII), per Saunders JA
Repudiating a Plea Bargain
If the Crown renegs on a plea deal on sentence, the Defence may make application to withdraw the guilty plea.[1] It may also be grounds for a stay of proceedings due to abuse of process.
- ↑
R v M (R.N.-Z.), 2006 CanLII 32999 (ON S.C.), per Hill J
R v Chen, 2009 ONCJ 453 (CanLII), per Fairgrieve J
see also: R v Tallon, 2003 CanLII 27268 (ON C.A.), per Rosenberg JA
Using Plea Bargaining as Evidence
Generally, a judge should not admit evidence surrounding a plea bargain unless it is in relation to a joint recommended sentence or whether it goes to the guilt or innocence of the accused.[1] This can include questions of credibility of a co-accused who was offered a lesser sentence for cooperation.[2]
Once a proposal for settlement is rejected and a trial is held, "previous negotiations [become] irrelevant", including for the purpose of sentencing.[3]
- ↑
R v Bremner, 2006 NSSC 367 (CanLII), per Goodfellow J, at paras 1 to 9
- ↑
Bremner, ibid., at para 6
- ↑
Bremner at para 8
R v Howell, 1995 CanLII 4282 (NS CA), (1996), 103 CCC (3d) 302, per Chipman JA at para 100
See R v Pabani, 1994 CanLII 8723 (ON CA), (1994), 29 C.R. (4th) 364, per Finlayson JA
R v White (1982), 39 Nfld. and P.E.I.R. 196 (Nfld. C.A.) (*no CanLII links)