Canadian Criminal Sentencing/Procedure/Plea Bargain

Introduction A plea bargain is an agreement between the Crown and defence whereby the Defence agrees to plead guilty to particular offences in exchange for a particular proposal on sentence. If the defence accepts the offer on sentence, the agreement is put the judge as a jointly recommended sentence. Joint Recommendations A joint recommendation is an agreement on penalty between the Crown and Defence to present a single penalty recommendation that the judge is asked to adopt. There was a major development in the law on Joint Sentencing Submissions in R. v. Anthony‑Cook, 2016 SCC 43 which needs to be added to this section. A joint recommendation does not need to encompass all aspects of the sentence. There can be a joint recommendation on part of a sentence, such as the form of penalty, while still keeping aspects of the penalty in dispute, such as the length of the penalty, conditions associated with the penalty, or ancillary orders.e.g. R. v. Parsons, 2012 CanLII 81320 (NL SCTD) - length of CSO and ancillary orders in dispute alone A joint submission often indicates a lower range of sentence.R v Kane 2012 NLCA 53 The motivation for an agreement is often due to a weak aspect in the Crown's case or the risk of the judge giving a higher penalty than what would sought by defence without an agreement. A joint recommendation may even be accepted where it is more lenient than the lower end of the normal range.R v Oake 2010 NLCA 19 at 64 Sentences arising from a joint recommendation "have little or no precedential value."R. v. Johnston, 2011 NLCA 56 R. v. Johnson, 2010 ABQB 546 R. v. Benlolo 2006 CanLII 19284 (ON CA), (2006), 81 O.R. (3d) 440 (C.A.) Deference A joint recommended sentence is a sentence for which the courts do not readily overturn. R. v. J.W.I.B., 2003 MBCA 92 R. v. Pashe (S.J.) 1995 CanLII 6256 (MB C.A.) The court may only do so where the sentence in not within a reasonably appropriate range for the circumstances.R. v. Smith, 2004 BCCA 657 R. v. Gartner, 2010 BCCA 600 R. v. Wickstrom, 2011 BCSC 745 R. v. Cerasuolo 2001 CanLII 24172 (ON CA) R. v. DeSousa, 2012 ONCA 254 The judge must give reasons for not adopting a joint recommendation. A judge should give serious consideration to a joint sentencing proposal.R v GWC, 2000 ABCA 333 at para 17 There is less weight given to "joint recommendations" that do not involve a "quid pro quo" (i.e. some reduced recommendation on sentence).R. v. Wolonciej, 2011 MBCA 91 at 10 Likewise, where the accused was without counsel less deference is given.R. v. Bambrick, 2011 NLCA 79 at para. 14 When Not Followed If a judge has reservations to adopt a joint recommendations it should allow counsel an opportunity to respond.R v GWC, 2000 ABCA 333 (CanLII), 2000 ABCA 333 at 26 Likewise, where a judge is looking to go beyond the range set by counsel, the judge should equally provide notice to the parties before going above or below the range.R v Hood, 2011 ABCA 169 at 14 R v Abel, 2011 NWTCA 4 at 23 R. v. Burback, 2012 ABCA 30 Similarly, where a judge wishes to impose a condition that was not contemplated by either party nor could it have been easily foreseen, then the judge should also provide notice before doing so.R v Beal, 2011 ABCA 35 Other Issues Where the accused misapprehended the joint recommendation, it can be grounds for a successful appeal of a sentence.e.g. R v Kinney, 2011 SKCA 122 Where an offender is unaware of a significant consequence of a particular sentence agreed upon, such as deportation without appeal, the court may reopen the consideration of sentence.R. v. Jamieson, 2011 NSCA 122 2 Repudiating a Plea Bargain If the Crown renegs on a plea deal on sentence, the Defence may make application to withdraw the guilty plea.R. v. M. (R.N.-Z.) 2006 CanLII 32999 (ON S.C.) R. v. Chen, 2009 ONCJ 453 see also: R. v. Tallon, 2003 CanLII 27268 (ON C.A.) 2 Case Digests Plea Bargains