Plea Deals: When can a judge refuse to go along with a joint recommendation for sentence?

Plea agreements between the defence and Crown are common place and happen all the time. This is when an accused person agrees to waive their right to a trial and plead guilty early in exchange for the Crown agreeing to ask for a specific sentence. Often times this is done by way of a “joint submission” which is when the defence and the Crown lawyer agree on the sentence the accused should get and both lawyers tell the judge that they are jointly recommending the same sentence. This is often done by accused people to save money on legal fees and to get a certainty of result. Trials are unpredictable and although an accused person who goes to trial can win, they can also lose and end up being the recipient of a far harsher sentence than they would have received had they pled guilty early. It is for this reason that accused people will often be interested in entering an early plea of guilty to avoid the rigours and unpredictability of a trial.

But what happens when a judge refuses to “go along” with the joint recommendation for sentence and instead imposes a significantly different and harsher sentence than the one agreed to by both the lawyers? Unlike in many US states in which a plea bargain is final and the judge has no discretion to modify the sentence bargained for, in Canada a judge is not bound by a joint recommendation and in law a guilty plea is not valid unless the accused person is aware that by entering into the plea the judge is not bound by any agreement between the defence and prosecutor (see section 606(b)(iii) of the Criminal Code). In some provinces in Canada the courts used a fitness test. That is, the courts were of the view that a jointly proposed sentence could be not followed by a sentencing judge merely if the sentencing judge was of the view that the sentence did not fit the crime because it was either too lenient or too harsh. In other provinces, courts used a much stricter test and would only impose a different sentence than the sentence jointly recommended by both lawyers if the sentence would bring the administration of justice into disrepute and would make the public lose confidence in the justice system.

The Supreme Court of Canada has now answered this question with their decision in the case of The Queen v. Matthew John Anthony-Cook. In the Anthony-Cook case the accused had pled guilty to manslaughter. The accused had punched the victim who fell awkwardly and fractured his skull on the pavement. The victim died from that injury. The defence and Crown had jointly recommended as a sentence an additional 18 months in jail (after considering the accused’s pre-trial custody) and had agreed that no probation should follow the jail sentence. The sentencing judge “jumped” the joint submission and decided that the jointly proposed sentence was not fit or adequate and instead gave the accused two years in additional jail time and three years of probation.

The Supreme Court of Canada reversed the sentencing judge’s ruling and held that the judge should have gone along with the joint submission. In doing so, The Supreme Court made it clear that it is the strict public interest test that should govern the law on joint submissions. That is, merely because a judge thinks a jointly recommended sentence is unfit is not enough. Even if a judge thinks the sentence was demonstrably unfit it is not enough for a judge to disregard the joint submission. As the Supreme Court put it, a jointly recommended sentence now can only be disregarded by a sentencing judge when the jointly recommended sentence 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.”

The reason the court rejected the much less stringent fitness test was explained this way:
As indicated, the position of the (Crown) is that while trial judges should give serious consideration to joint submissions, such submissions may be rejected on a simple “fitness” test.  With respect, this test is not sufficiently stringent.  Under it, trial judges must ask what a fit or appropriate sentence would be, instead of asking whether the sentence proposed would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system.  In short, the “fitness” test does not direct trial judges to approach joint submissions from a position of restraint.  Rather, it sends a different, and in my view, a wrong signal: that they may interfere if they have a different view of what a “fit” sentence would be.  If trial judges were free to interfere on this basis, the result would be to “effectively eliminate the use of plea bargaining as part of the criminal prosecution process” (R. v. Oxford, 2010 NLCA 45 (CanLII), 299 Nfld. & P.E.I.R. 327, at para. 55).
(Emphasis Added)

Why would someone give up their right to a trial by pleading guilty on the basis of an agreement with the prosecutor that a judge can easily put aside and not follow? The Supreme Court of Canada’s decision in the Anthony-Cook case promotes certainty of result and now people who enter into plea agreements can be confident that a judge who, for whatever reason, does not like the jointly recommended sentence will almost always have to go along with it unless the sentence proposed is so lenient that it would send a message that the criminal justice system has broken down. This is a very high threshold and only in extreme and rare circumstances will a judge now be able to disregard a well negotiated plea bargain. This should lead to greater efficiency in the criminal justice system in the long run.

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