October 26, 2016
On October 21, 2016, the Supreme Court of Canada (SCC) issued an important decision on joint sentencing submissions in criminal cases in Canada, which also has implications for criminal competition law sentencing (see R. v. Anthony-Cook, 2016 SCC 43).
Joint Sentencing Submissions and the Competition Act
Joint sentencing submissions – that is when Crown and defence counsel agree to recommend a particular sentence to a trial judge in exchange for an accused to plead guilty – are commonly made in criminal cases, including guilty pleas for criminal offences under the federal Competition Act such as price-fixing and other conspiracies (section 45) and bid-rigging (section 47).
For example, under the Competition Bureau’s Leniency Program, one requirement is that an accused plead guilty. Crown and defence counsel will then commonly make a joint sentencing submission to the court. While courts have the sole discretion to determine sentences, based on sentencing principles set out in the Criminal Code, in practice joint sentencing submissions have routinely been accepted by courts in competition law cases.
Facts
In this case, the trial judge departed from the joint sentencing submission made by the Crown and defence counsel in a manslaughter case. The appellant initially negotiated a sentence with the Crown of 18 months in custody – in addition to about a year already spent in pre-trial custody – with no period of probation to follow. In exchange, the appellant agreed to plead guilty to manslaughter.
At the sentencing hearing, the trial judge put the Crown and defence on notice that he had serious reservations about their joint submission and ultimately rejected it. In its place, the judge sentenced the appellant to a custodial sentence of two years less a day and placed him on probation for three years (a total sentence of about three years plus probation). In making his decision, the trial judge considered the circumstances of the appellant and the offence and sentencing authorities, concluding that any lesser sentence “would be an unfit sentence”.
The appellant appealed to the British Columbia Court of Appeal, which dismissed his appeal holding that the sentence imposed was “fit in the circumstances”. The Court of Appeal also accepted the Crown’s position that it was unnecessary to decide the test for departing from a joint sentencing submission.
Issue
On appeal to the SCC, the Court had to decide the narrow issue of the correct legal test that judges should apply in deciding whether it is appropriate in a particular criminal case to depart from a joint sentencing submission. In this regard, the existing case law was unsettled with courts in different provinces applying four different tests.
SCC Decision
After reviewing the case law, the SCC held that an amplified public interest test was the appropriate test, which is more stringent than other tests proposed, and 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”.
More specifically, the SCC held that a trial 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.
According to the Court, 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”. The Court also noted that “rejection [of a joint sentencing submission] 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”.
Policy Rationales for a Stringent Test
In coming to its decision, the Court also summarized the policy rationales for a stringent test for departing from a joint sentencing submission.
These include, for an accused: minimizing the stress and legal costs associated with a trial, allowing them to begin making amends and maximizing certainty; and, for the Crown: the guarantee of a conviction, potentially helpful information or testimony for the investigation and sparing victims emotional costs associated with a trial. The Court also noted that joint submissions have overall benefits to the administration of justice, which include saving the justice system time, resources and expenses.
In addition, the Court set out useful guidance for trial judges on the approach that they should follow when they are troubled by a joint sentence submission.
Implications for Competition Act Sentences
This important SCC decision has several implications both for criminal cases and competition cases.
In general, the decision will give accused and their counsel more confidence in criminal cases that courts will accept joint sentencing submissions. The decision also means that it will be more difficult for judges to reject joint submissions, unless the high bar is met that a proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system.
In Competition Act cases in particular, the decision should provide both parties pleading guilty under the Bureau’s Leniency Program and the Bureau (and Crown counsel) with certainty that joint submissions will continue to usually be accepted by judges. Practically, the SCC’s decision should also somewhat strengthen the Bureau’s Leniency Program, which, along with its Immunity Program, is one of its strongest tools for enforcing the Competition Act.
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