Where a sentencing court is inclined to reject a joint sentence that court should:
* explain why the joint submission is contrary to the public interest or how it could bring the administration of justice into disrepute;
* acknowledge the high threshold for rejecting a joint submission;
* inform counsel that the court is disinclined to accept a joint submission and afford them the opportunity to make submissions on the matter; and,
* if imposing a different sentence, fully consider the circumstances of these offences and this offender in determining a fit sentence.
Failure to follow these steps can lead to the sentence being set aside on appeal.
A passage of the decision follows:
[20] In R. v. E. (R.W.) 2007 ONCA 461 (CanLII), (2007), 86 O.R. (3d) 493, the Ontario Court of Appeal reviewed the law regarding joint submissions. In that case, the Court of Appeal considered whether the trial judge applied the wrong test in rejecting a joint submission.
[21] At paragraph 22, the Court states:
It is trite law that a sentencing judge is not bound to accept a joint submission. It is well settled, however, that a judge should not reject a joint submission unless it is contrary to the public interest and the sentence would bring the administration into disrepute: R. v. Cerasuolo, [2001] O.J. No. 359, 151 C.C.C. (3d) 485 (C.A.); R. v. Dorsey 1999 CanLII 3759 (ON C.A.), [1999] O.J. No. 2957, 123 O.A.C. 342 (C.A.) [page 500].
[22] In R. v. Douglas, reflex, [2002] J.Q. No. 418, 162 C.C.C. (3d) 37 (C.A.), Fish J.A., as he then was, compared the requisite test in Ontario to the standards in other provinces. He concluded that the standard in Ontario is not at variance with those that operate in other provinces. He explained at paragraph 51:
a reasonable joint submission cannot be said to bring the administration of justice into disrepute.[1]
[23] In R. v. E.(R.W.) at para 30, the Court of Appeal cites its own decision in R .v. Downey, [2006] O.J. No. 1289, 69 W.C.B. (2d) 155. The Court agreed with the sentencing judge's assessment that the joint submission in question was low but was not satisfied that the proposed sentence was so low that it would bring the administration of justice into disrepute. As the sentencing judge had not addressed how the joint submission would bring the administration of justice into disrepute, the court concluded that he erred in principle in rejecting the joint submission.
[24] The court went on to consider its decision in R. v. Tsicos, [2006] O.J. No. 4041, 216 O.A.C. 104 (C.A.) at paragraph 33. There, the Court of Appeal mentioned a number of factors that a sentencing judge should consider in rejecting a joint submission.
After explaining why the joint submission is contrary to the public interest or how it could bring the administration of justice into disrepute, it suggests that a court should acknowledge the high threshold for rejecting a joint submission; inform counsel that the court is disinclined to accept a joint submission and afford them the opportunity to make submissions on the matter; and, if imposing a different sentence, a court must fully consider the circumstances of these offences and this offender in determining a fit sentence.
...
[29] The sentencing judge did not address how the joint submission before him would bring the administration of justice into disrepute although he did address why the joint submission was contrary to the public interest. He ought to have acknowledged the high threshold for rejecting a joint submission, informed counsel that the court was disinclined to accept the submission and afforded counsel an opportunity to make submissions on the matter. He ought to have also fully considered the circumstances of the offence and the offender in determining a fit sentence. He did not do so in this case. He simply found that the recommendation of a conditional discharge was not appropriate and that it would not be in the public interest to award a discharge in the case of a domestic violence dispute in the face of an existing court order.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
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