Many of the cases winding their way through the criminal justice system will end in guilty pleas. And of those pleas, many will be the subject of joint positions, meaning that both the Crown and the defence are asking for an agreed-upon sentence. The Supreme Court of Canada released a new decision last week, R v. Anthony-Cook, clarifying the role of judges in considering joint positions. Before this decision, there had been some disagreement between provinces as to the right test to apply, but the Supreme Court confirmed that a judge must apply a ‘public interest test.’ According to the test, a trial judge should not depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute. This test is more stringent than other tests that have been used, such as whether a sentence is fit.
But what does it mean for a sentence to bring the administration of justice into disrepute? The Supreme Court quoted a case of the Newfoundland and Labrador Court of Appeal, which states that the sentence cannot be “markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down of the proper functioning of the criminal court system.” In other words, the judge should avoid a decision that will cause an informed and reasonable public to lose confidence in the courts.
Interestingly, this is almost the exactly situation that happened in that very province only a few weeks ago. In the case of Christopher Butt, Justice Goodridge of the Newfoundland and Labrador Supreme Court, accepted a joint position of 5 years for the violent sexual assault of an 11 year old girl. The judge balanced the aggravating facts of the case with the mitigating factors of the guilty plea, apology and Butt’s efforts at rehabilitation. The other important factor was that the girl had difficulty testifying at the preliminary hearing and her ability to testify at a trial was in question. Given the fact that the plea guaranteed a conviction, and weighing the other factors, the judge found that the proposed sentence was not so low as to bring the administration of justice into disrepute or be contrary to the public interest.
However, the public’s reaction to the case told a different story. Nova Scotia rapper Classified drew attention to the case on social media, calling on the judge to explain himself and asking why the case wasn’t bigger news. A quick scroll through the responses on Twitter shows that he was not alone in thinking that the sentence was too lenient. Indeed, journalist Christie Blatchford wrote that the rapper is in fact more in touch with the public pulse and what brings the administration of justice into disrepute.
So, while the Supreme Court has clarified the rules about how a judge sentence, the question remains as to how judges are gauging how the public might perceive a sentence. The other question that this raises is how informed the public is: were Classified and his supporters aware of the typical range of sentences in sexual assault cases and the specific frailties of the Crown’s case? Even if they were, what is the remedy if a judge did make the wrong call and brought the administration of justice into disrepute? Given that both the defence and the Crown worked out the plea agreement for Butt, neither would be likely to appeal the decision, so what next?
Joint positions are a valuable tool for the criminal justice system that save resources and court time in avoiding trials. And while the courts have established a framework to ensure that proposed sentences are just, the question of the administration of justice will no doubt persist in difficult cases.