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Safety in Joint Sentencing Positions

When someone is charged with a criminal offence, such as a domestic assault, the Crown will provide the accused, or his/her lawyer, with their position on resolution. This will entail which charge(s) they would like the accused to plead to along with the sentence they will be asking the Judge to impose. Defence lawyers will speak to the Crown and attempt to arrange a better deal for their client. Oftentimes a deal with be working out that is "joint" meaning that the Crown and Defence are asking for the same sentence. This joint position, however, is not guaranteed as the presiding judge always has the power to disagree with the joint position and sentence higher or lower if he/she sees fit. That being said, there are steps that a judge must take before disagreeing with a joint position, and these steps should provide the accused with some comfort in knowing that the judge will likely follow the joint position.

In order to "jump" (disagree with) a joint position, the case law makes it clear that a Judge should not reject a joint submission unless it is contrary to the public interest and the sentence would bring the administration of justice into disrepute. This is a high threshold. If the Judge feels that the joint position is contrary to the public interest and is of the opinion that he/she cannot impose that sentence the Court of Appeal of Ontario has set out some principles that must be followed: the judge must acknowledge the high threshold for a joint submission; inform counsel it is disinclined to accept a joint submission; allow them the opportunity to make submissions on the matter; and if imposing a different sentence, the trial judge must fully consider the circumstances of these offences and this offender in determining a fit sentence. The Judge must provide counsel with an opportunity to justify the joint position, and to make submissions on why it is an appropriate sentence. Since the position is shared by the Defence and the Crown, it is likely that both counsel will be advising the Court as to the appropriateness of the sentence.

The case law makes it clear that while Judges have the discretion to not accept a joint submission, it is not something they can do lightly and it must be justified and must be to prevent a sentence that would otherwise be contrary to the public interest. As such, an accused who is pleading guilty and there is a joint submission being presented by the Defence and the Crown should have some security in knowing that position is likely going to be accepted by the Court.

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