Canada: Joint Submissions On Sanction: The Supreme Court Of Canada Clarifies The Amount Of Deference That Should Be Given

In a previous article, we discussed a discipline tribunal's role in considering joint submissions on sanction; namely, a discipline tribunal has the discretion to accept or reject a joint submission. Previous courts adopted principles established in the criminal context, and held that a discipline tribunal must give deference to the joint submission on sanction and only reject it if the joint submission is "unfit, unreasonable or contrary to the public interest." Recently, the Supreme Court of Canada clarified the applicable test for joint submissions on sentence in the criminal context in R. v. Anthony-Cook.

R. v. Anthony-Cook

The Supreme Court noted that trial judges have applied different tests when considering joint submissions. The tests include the "fitness of sentence test", whether the sentence is "unreasonable", or "demonstrably unfit." The Court determined that the more stringent "public interest test" is the proper standard to apply. The Court held that a trial judge should only depart from a joint submission where the proposed sentence "would bring the administration of justice into disrepute or is otherwise contrary to the public interest." A joint submission will fail the public interest test where: 

The Court emphasized that the threshold of the public interest test is undeniably high in order to protect the certainty and in turn, efficiency of joint submissions. Where there is too much doubt about whether a joint submission will be accepted, the accused will be reluctant to forgo a trial in favour of an agreed upon sentence.

Does the "Public Interest Test" apply in Professional Discipline Proceedings?

As of yet, there are no reported decisions where the Courts have specifically held that the higher "public interest" test should apply in the context of a professional discipline proceeding. Although the issue has not been conclusively determined, the reasons articulated by the Supreme Court of Canada in Anthony-Cook for adopting the public interest test would also arguably apply in the professional discipline context. 

As noted by the Court, accused persons who plead guilty to criminal charges promptly are able to minimize the stress and legal costs associated with trials.  Moreover, for those who are truly remorseful, a guilty plea offers the opportunity to begin to make amends. However, an accused will only give up her right to contest the charges if she has a high degree of confidence that the joint submission will be accepted.

This rationale is equally applicable in the professional discipline context. When a member of a professional regulatory organization makes admissions and agrees to a joint submission on sanctions, there is no need for a contested hearing and this saves the organization considerable time and expense. However, it is unlikely that members will give up their right to a contested hearing unless they have a high degree of confidence that the joint submission on sanctions will be accepted.

The Supreme Court of Canada's decision clarifies that discipline tribunals should exercise a very high degree of deference when considering a joint submission on sanctions. In the absence of legal authority applying the decision in the professional discipline context there is some uncertainty with respect to the proper test.  However, in our view the rationale for the higher public interest is equally applicable in the professional discipline context and therefore the more deferential public interest test is likely to apply.

What Process Should Discipline Tribunals Follow When Considering a Joint Submission?

In Anthony-Cook, the Court clarified the process that should be followed by trial judges when considering a contentious joint submission.  The trial judge is entitled to know of the circumstances leading to the joint submission, but this does not mean that the trial judge must be informed of the negotiating positions or substance of the discussions. The judge should be provided with some context to determine whether the joint submission would bring the administration of justice into disrepute or be contrary to the public interest. This process is largely consistent with what occurs in a professional discipline proceedings. Counsel for the regulatory organization will usually explain the basis for the joint submission, and the reasons why the penalty is being proposed.

The Supreme Court also held that an accused should be allowed to withdraw a guilty plea if the judge is considering rejecting the joint submission.  Although this aspect of the Supreme Court's decision has not been considered in the professional discipline context, the process that is followed when a member makes admissions in a professional discipline hearing is not identical to the process that is followed in the criminal context. A member who makes admissions typically does so with full knowledge that the admissions will either be accepted or rejected by the discipline tribunal before it considers sanction. The member has no expectation that he or she will be able to withdraw the admissions once accepted. Pending contrary direction from the Courts, in our view members do not have to be provided with the opportunity to withdraw admissions of unprofessional conduct if the discipline tribunal is considering varying a joint submission on sanction.

To summarize the process applicable to discipline hearings:

1. Discipline tribunals are not obliged to accept joint submissions on sanction, but should exercise a very high degree of deference and should only interfere with a joint submission if it is contrary to the public interest. In the professional discipline context, discipline tribunals should not reject or vary a joint submission unless the submission, as presented, would lead to a break down in the administration of the professional discipline process.
2. The parties presenting the joint submission to the discipline tribunal should ensure the tribunal is aware of the circumstances that led to the joint submission, such as the fact that the member had agreed to forego her right to have the allegations proven in a hearing and to forego any defences.
3. If a discipline tribunal has concerns about the joint submission, the tribunal must bring those concerns to the attention of the parties and provide the parties with the opportunity to make further submissions.
4. Sometimes, upon hearing the tribunal's concerns, the parties may agree to amend the joint submission, in a manner that alleviates the tribunal's concerns.
5. If the parties refuse to amend the joint submission, the tribunal should only vary it if the joint submission fails the public interest test.
6. Where the tribunal rejects or varies a joint submission, the discipline tribunal should ensure that the reasons for doing so are clearly articulated in its written decision.

Anthony-Cook is a helpful clarification of the high standard of deference a hearing tribunal must afford to joint submissions on sanction. However, it does not represent a significant change in the current process and practice of hearing tribunals.

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.