Canada: The Supreme Court Of Canada Clarifies The Test And Procedure For Joint Submissions On Sentencing

In R. v. Anthony Cook, 2016 SCC 43, the Supreme Court of Canada recently confirmed that trial judges should only depart from a joint submission in very limited circumstances, where the sentence proposed would bring the administration of justice into disrepute, or is otherwise not in the public interest.

Resolution negotiations are a prevalent and necessary feature of our criminal justice system. They allow the Crown and the accused to avoid the uncertainty, stress and legal costs associated with trials where the accused admits guilt and is not exercising his right to make full answer and defence. Resolutions also save the court system precious time, resources, and expenses. Indeed, without resolutions the criminal justice system would collapse under its own weight.1

Joint submissions – in which the Crown and the defence jointly submit an agreed sentence to the Court – are an essential component of an efficient and fair resolution process. As reflected in section 606(1.1)(b)(iii) of the Criminal Code of Canada, trial judges are vested with discretion to accept or not accept a joint submission on sentence by the Crown and the defence. In order for resolutions to be attractive to the Crown and the accused, they must have a high degree of certainty that the Court will not exercise this discretion to depart from them.

Disparate Approaches of Provincial Appellate Courts

Prior to Anthony-Cook, the approach of appellate courts across the country had splintered into four separate tests with varying degrees of strictness:

  1. The Fitness Test: Trial judges may depart from a joint submission if the sentence proposed is not fit.2
  2. The Demonstrable Unfitness Test: Trial judges may depart from a joint submission if the sentence proposed is demonstrably unfit.3
  3. The Public Interest Test: Trial judges may depart from a joint submission where the sentence proposed would bring the administration of justice into disrepute, or is otherwise not in the public interest.4
  4. The Hybrid Test: The fitness and public interest tests are functionally the same and may be used interchangeably.5

The Public Interest Test Prevails

Justice Michael Moldaver, writing for a unanimous Court, declared that the public interest test, the most stringent of the tests, should be applied in the future as it best reflects the benefits that joint submissions bring to the criminal justice system and the corresponding need for a high degree of certainty in them.

The public interest test for departing from a joint submission is an "undeniably high threshold" that will only be met where the sentence proposed 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.6

Procedure for Trial Judges When Considering Departing From a Joint Submission

The Court also set out the procedure that should be followed by trial judges when they are considering departing from a joint submission.

1) Parties Provide Trial Judge with Information About Proposed Sentence

The Crown and defence counsel should disclose the circumstances leading to the joint submission, including any benefits obtained by the Crown (such as an agreement to cooperate with the Crown or police in another case) or concessions made by the accused (such as the voluntary return of proceeds of crime). Disclosing all of the circumstances around the joint submission will not be possible in many cases. The content of plea negotiations remains protected by settlement privilege.7 Additionally, there may be concerns regarding safety, privacy and/or the integrity of an ongoing investigation. However, the parties should endeavour to disclose as much as possible to the trial judge to assist in his/her consideration of the joint submission.

2) Trial Judge Applies Public Interest Test

The trial judge should approach the joint submission on an "as is" basis, not assuming that the parties meant to include an additional term unless it is statutorily required. The public interest test applies regardless of whether the judge views the sentences as too high or too low.

3) Trial Judge May Make Further Inquiries

If not disclosed initially by the parties, the trial judge may make further inquiries of counsel into the circumstances leading to the joint submission, including any benefits obtained by the Crown or concessions made by the accused.

4) Trial Judge Provides an Opportunity for Further Submissions

If the judge is considering departing from the joint submission, he/she should advise counsel of his/her concerns and invite further submissions on those concerns.

5) Consider Providing an Opportunity to Withdraw Guilty Plea

If the trial judge's concerns are not alleviated by further submissions, the trial judge may allow the accused to withdraw his/her guilty plea. The Supreme Court of Canada specifically declined to define the circumstances where such an opportunity should and should not be provided.

6) Provide Clear and Cogent Reasons for the Decision

If the trial judge rejects the joint submission, he/she should provide reasons that adequately explain why the proposed sentence was unacceptable to assist the parties in their resolution of future cases, and facilitate appellate review if necessary.


In Anthony-Cook, the accused had long-standing issues with mental health and substance abuse and a relatively lengthy criminal record. He punched a volunteer at a drop-in centre who fell, hit his head on the pavement and subsequently died. He was in pre-trial custody for 11 months.

The accused pled guilty to manslaughter after several days of trial. The Crown and defence made a joint submission proposing a further 18 months in custody with no period of probation afterwards. The trial judge followed the appropriate procedure, requesting further submissions and providing the accused with an opportunity to withdraw his guilty plea. The trial judge applied the fitness test and rejected the joint submission, instead imposing a custodial sentence of a further two years less a day and three years of probation.

The Supreme Court held that the trial judge erred in rejecting the joint submission. Applying the public interest test, 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.


The impact of Anthony-Cook will be mixed depending on what test provincial courts were applying beforehand. In provinces where the public interest test was already being applied, such as Ontario and Newfoundland and Labrador, the impact will be to confirm the scope of the test and clarify the procedure to be followed by trial judges in applying it.

In provinces where the less stringent fitness test was being applied, such as British Columbia, Alberta, Saskatchewan and Nova Scotia, the decision will alter the calculus applied by the parties during resolution discussions. Defence counsel will be able to negotiate a resolution with greater certainty that a sentence jointly recommended by the Crown and the defence will be accepted by the Court. This removes a significant impediment to resolution of criminal matters before trial and will hopefully assist in alleviating delays in the criminal justice systems in these provinces.

Case Information

R. v. Anthony-Cook, 2016 SCC 43

Docket: 36410

Date of Decision: October 21, 2016


[1] Delchev v. R., 2012 ONSC 2094 at para. 35.

[2] R. v. G.W.C., 2000 ABCA 333 at paras. 17-18; R. v. Bezdan, 2001 BCCA 215 at para. 15; R. v. MacIvor, 2003 NSCA 60.

[3] R. v. Lacasse, 2015 SCC 64.

[4] R. v. Dorsey, (1999), 1999 CanLII 3759 (ON CA) at para. 11; R. v. Druken, 2006 NLCA 67 at para. 29; R. v. Nome, 2002 BCCA 468 at paras. 13-14

[5] R. v. Douglas (2002), 162 C.C.C. (3d) 37, at para. 51; R. v. Dion, 2015 QCCA 1826, at para. 14; R. v. Dumont, 2013 QCCA 576, at para. 12; R. v. Mailhot, 2013 QCCA 870, at para. 7.

[6] Anthony-Cook at para. 34.

[7] R. v. Tkachuk, 2001 ABCA 243 at para. 34

To view original article, please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.