Test for a judge to vary from a joint submission is the same regardless of whether the variation is to increase or decrease

R. v. DeSousa, 2012 ONCA 254 is an important decision holding the test for a judge to vary from a joint submission is the same regardless of whether the variation is to increase or decrease the joint submission. The Court also speaks of the need for facts to be put before the Trial Court supporting the joint submission:

[22]       Certainty of result is, of course, not the ultimate goal of the sentencing process.  Certainty must yield where the harm caused by accepting the joint submission is beyond the value gained by promoting certainty of result.  The standard described in both Cerasuolo and the Martin Report – that is, whether the proposed sentence would bring the administration of justice into disrepute or would otherwise not be in the public interest – draws the line where certainty of result must give way to other criminal justice interests.  I think the standard is applicable regardless of whether a trial judge is inclined to go above or below the sentence proposed in the joint submission. 

[23]       In holding that a trial judge should apply the same test when deciding whether to depart from a joint submission, upward or downward, I do not suggest that the factors relevant to the application of that standard will be identical in both situations.  If a trial judge is considering imposing a higher sentence than the sentence agreed upon, concerns about the fairness to an accused who has given up a right to a trial in anticipation of a certain sentence will figure largely in the trial judge's determination of whether the agreed upon sentence in the joint submission is so low as to bring the administration of justice into disrepute or is otherwise not in the public interest.  Obviously, concerns about the accused's fair trial rights are not in play if the trial judge is considering imposing a sentence that is lower than the agreed upon sentence.

[24]       As alluded to in the extract from the Martin Report set out above, where a judge is considering "undercutting" a joint submission, he or she must have regard to the community's reasonable expectations that the court will impose a sentence in accordance with that agreed upon in the joint submission.  Confidence in the operation of the justice system may suffer where an accused enjoys the benefits of a plea bargain, perhaps for example escaping prosecution on other more serious charges, but is not required to serve the sentence agreed upon as part of that bargain.  In deciding whether to reject the joint submission, trial judges must be alive to that potential negative impact on the administration of justice.  The consideration of that potential impact finds expression in the standard articulated in Cerasuolo and the Martin Report.

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[28]       It was incumbent on the Crown, even on a joint submission, to put before the trial judge facts relevant to the nature of the offence that justified the imposition of a term of imprisonment.  In putting forward the joint submission, the Crown seem to have relied exclusively on a sentencing guideline developed by prosecutors that called for incarceration of a length to be determined by reference to the amount of the drug imported.  While guidelines for prosecutors making sentencing submissions are helpful, they are not themselves a justification for the imposition of a sentence which is consistent with those guidelines.