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Ruling may lead to 'unfit' sentences, expert says

Thursday, December 15, 2016 @ 7:00 PM | By John Schofield

A recent Supreme Court of Canada decision could significantly curtail the power of judges to modify joint sentencing submissions and may increase the risk of wrongful convictions, says a McGill University law professor.

“This decision undermines the fundamental principle of sentencing — namely the principle of proportionality — by severely limiting the judge’s ability to craft a proportionate sentence,” said Marie Manikis, an assistant professor in the McGill University Faculty of Law who teaches criminal law, criminal procedure and sentencing. “Indeed, the court suggests that even a demonstrably unfit sentence can be permissible in some contexts when presented as a joint submission by the parties.”

In a unanimous, Oct. 21 decision in R. v. Anthony-Cook 2016 SCC 43, the Supreme Court overturned a January 2015 ruling by the British Columbia Court of Appeal that upheld a B.C. Supreme Court trial judge’s decision to increase a sentence for manslaughter against Matthew John Anthony-Cook, altering the sentence that had been recommended by the Crown attorney and the defence counsel.

On the morning of Feb. 9, 2013, Anthony-Cook got into a fight with Michael Gregory just outside the Kettle Friendship Society, a Vancouver clinic and drop-in centre that provides services to people with addiction and mental health issues. Both men had a history of mental health and substance abuse problems, and Gregory was also a volunteer at the facility. Anthony-Cook threw two punches, striking Gregory in the head and knocking him unconscious. He fell backward, hitting the pavement and suffering a fatal skull fracture.

Anthony-Cook fled and was found by police about five hours later. He was charged with manslaughter. After initially pleading not guilty, he changed his plea to guilty several days into the trial in exchange for accepting a joint sentencing submission that proposed another 18 months in custody, on top of the 11 months he had spent in pretrial custody. It also recommended no period of probation.

At the June 2014 sentencing hearing, B.C. Supreme Court Justice William Ehrcke applied the “fitness of sentence” test and rejected the proposed sentence, concluding it did not give adequate weight to the principles of denunciation, deterrence and protection of the public. He invited Anthony-Cook to apply to withdraw his guilty plea, but he declined. Justice Ehrcke imposed a longer custodial sentence and added three years of probation, even though it conflicted with Anthony-Cook’s medical supervision under the B.C. Mental Health Act.

In January 2015, the British Columbia Court of Appeal unanimously dismissed Anthony-Cook’s sentence appeal, concluding that the sentence imposed was fit under the circumstances.

In writing for the Supreme Court of Canada, however, Justice Michael Moldaver argued that Justice Ehrcke erred by treating the joint submission as though it was a conventional sentencing hearing — and that there was no basis for him to substitute his opinion for the considered agreement of counsel.

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

The Supreme Court pointed out the lack of consensus among provincial appellate courts on a uniform test that trial judges could apply in deciding whether it was appropriate to depart from a joint submission. There are four approaches being used in practice, noted Justice Moldaver: the fitness test; the demonstrably unfit test; the public interest test; and an approach that treats the fitness and public interest tests as essentially the same.

“The public interest test is the proper legal test that trial judges should apply,” the Supreme Court stated. “The public interest test, by being more stringent than the other tests proposed, 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.”

Under the public interest test, added Justice Moldaver, a trial judge should not depart from a joint submission on sentence unless the proposed sentence brings the administration of justice into disrepute or is otherwise contrary to the public interest.

But by focusing on the benefits of joint sentencing submissions, the Supreme Court ignored the documented dangers of these practices, said Manikis in an extended e-mail. “Some have led to wrongful convictions,” she noted, “particularly in the context of individuals with less resources and mental health issues who can more easily take on a guilty plea in exchange for a possible sentencing discount.”

By reducing the power of judges to refashion joint sentencing submissions, she added, “prosecutors might be tempted to charge individuals even with very weak evidence, with the hope they will simply plead guilty under the pressure of a charge.”

“The court in Anthony-Cook inevitably places the crafting of a sentence in the hands of prosecutors and defence,” added Manikis, “without the same standards, principles and protections that apply to judges.”

Micah Rankin, an associate professor of law at Thompson Rivers University who served as lead counsel for Anthony-Cook in the Supreme Court sentencing appeal, agreed the decision particularly puts Crown attorneys in the driver’s seat when it comes to joint sentencing submissions. The Supreme Court decision marks a sea change from 30 years ago, he noted, when a debate still raged about the propriety of plea bargaining.

“The public may not agree,” he said, “but the legal system is coming around to almost a consensus that plea bargaining is a good thing. Justice Moldaver said the system would be brought to its knees if that didn’t exist.”

Rankin said the decision sets a high threshold for departing from joint sentencing submissions that will have “real significance” — especially in provinces like B.C., where more than one test was being used by trial judges.

Some observers will argue that the public interest test is too vague, added Rankin. But he predicted that it will be defined more precisely in future appeal court decisions.

Michael Lacy, a lawyer with the Toronto firm of Brauti Thorning Zibarras and a vice-president with the Criminal Lawyers’ Association, said the decision brings certainty to what was the prevailing practice in Ontario. “It will allow the parties to have confidence that, when they present a considered joint submission on sentencing, it will be accepted by the sentencing judge,” he commented in an e-mail. “This will assist in the plea bargaining process and will foster confidence in the administration of justice.”