R. v. Fuller, 2020 ONCA 115

JOINT SUBMISSIONS

The appellant pled guilty to robbery on the basis of a joint sentencing submission of two years’ custody in addition to pre-sentence custody (at that time 51 days). The sentencing judge (“SJ”) expressed concern given the appellant’s lengthy criminal record and the nature of the drugs stolen. At a later date, the appellant proposed a second joint submission of time served plus three years (which would have amounted to 40.5 months). The SJ dismissed the joint position but did not address why. The appellant was sentenced to a sentence of five years (minus 4.5 months for PSC).

The appellant submits that the SJ misapplied the threshold justifying departure from a joint submission. Crown counsel on appeal, contrary to the trial Crown’s position, submits that both joint positions were contrary to the public interest and administration of justice.

Deference to a joint position is the rule, not the exception. An accused should enjoy a high degree of confidence that a joint submission will be accepted when a guilty plea is entered. A joint position on sentence following a guilty plea should only be rejected in rare cases because such positions are “vitally important to the well-being of our criminal justice system, as well as our justice system at large.” - R v Anthony-Cook, 2016 SCC 43 at para 25.

Para 17: “The question at hand is not whether the joint position results in a fit or demonstrably unfit sentence, but whether the proposed sentence would bring the administration of justice into disrepute or is otherwise not in the public interest.”

The dispute in this case is not whether the SJ was aware of this test or not. The dispute, rather, arises from the fact that he only applied the test to the first joint position. In pleading guilty, the appellant gave up his right to trial. As a result, the SJ should have addressed his reasons why the second joint position would lead a reasonable person to believe that the proper functioning of the justice system had broken down. 

Gillese JA, writing for the court, concluded that the circumstances in this case did not justify departing from the final joint submission. While the proposed 40.5 months sentence was on the lower end of the appropriate range, it was still within the range. Sentence of appeal allowed; sentence replaced with three-year custodial term (+ 4.5 months of PSC).