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.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions