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Sentencing - Criminal Code offences - Offences against person and reputation - Homicide - Manslaughter - Particular sanctions - Imprisonment - Probation - Sentencing considerations - Submissions - Joint submissions

Thursday, November 10, 2016 @ 7:00 PM  

Appeal from a judgment of the British Columbia Court of Appeal affirming a sentencing decision which set aside a joint submission regarding Anthony-Cook’s sentence. Anthony-Cook entered a plea of guilty to manslaughter on the basis of a joint submission as to sentence. The trial judge rejected the joint submission and imposed a longer custodial sentence than the sentence proposed by the Crown and the defence counsel. He also imposed a probation order for three years, even though the joint submission did not contemplate a period of probation. The Court had to determine whether the trial judge erred in departing from the joint submission proposed by the parties. The trial judge expressed two concerns with the joint submission. First, he noted that counsel had mistakenly overestimated by some six months the amount of credit to which Anthony-Cook was entitled for time spent in pre-sentence custody. Second, the trial judge was concerned that without a probation order, the sentence would not adequately protect the public. Applying the “fitness of sentence” test, the trial judge rejected the joint submission. While giving it careful consideration, he concluded that it did not give adequate weight to the principles of denunciation, deterrence, and protection of the public. The Court of Appeal for British Columbia unanimously dismissed Anthony-Cook’s sentence appeal.

HELD: Appeal allowed. Provincial appellate courts across the country did not agree on a uniform test that trial judges could apply in deciding whether it was appropriate in a particular case to depart from a joint submission. Minor variations aside, four possible tests or approaches emerged from the submissions received by the Court. The public interest test was the proper test. It was more stringent than the other tests proposed, and it best reflected the many benefits that joint submissions brought to the criminal justice system and the corresponding need for a high degree of certainty in them. Under the public interest test, a trial judge could not depart from a joint submission on sentence unless the proposed sentence brought the administration of justice into disrepute or was otherwise contrary to the public interest. A high threshold for departing from joint submissions was not only necessary to obtain all the benefits of joint submissions, it was appropriate. Counsel were required to provide the trial judge with a description of the facts relevant to the offender and the offence in order to give him or her a proper basis upon which to determine whether the joint submission was to be accepted. In circumstances where the trial judge was not satisfied with the sentence proposed by counsel, an opportunity should be afforded to counsel to make further submissions to address the judge’s concerns, and the accused could even be allowed to apply to withdraw his or her guilty plea. Setting aside that the trial judge evaluating the proposed sentence for Anthony-Cook failed to apply the proper test, he failed to take into account the important systemic benefits of joint submissions, and the corresponding need for them to be reasonably certain. The trial judge treated the joint submission as though it was a conventional sentencing hearing. He erred in doing so. The parties made a clear and firm recommendation on the appropriate sentence. There was no basis for the trial judge to substitute his opinion for the considered agreement of counsel. The custodial term proposed, while low, was not so low as to bring the administration of justice into disrepute or be contrary to the public interest. Counsel’s view that the probation order was duplicative and therefore unnecessary to protect the public was reasonable in the circumstances. The sentence jointly proposed by the Crown and defence was not one that would bring the administration of justice into disrepute, nor was it otherwise contrary to the public interest. Sentence: 18 months’ imprisonment, with no period of probation.