Plea Bargaining: An Alberta Trilogy
- January 15, 2023
- Clayton Rice, K.C.
Plea bargaining is not only commonplace but essential to the administration of the Canadian criminal justice system. In the modern practice of criminal law the bargain is called a joint submission when the prosecutor and defence counsel agree on a guilty plea and also agree to recommend a particular sentence to the sentencing judge with the explicit instructions of the defendant. However, joint submissions are not binding and sentencing judges have discretion to depart from them. What, then, are the guardrails that inform judicial discretion whether to impose a sentence higher or lower than a joint submission?
On December 19, 2022, the Alberta Court of Appeal released the unanimous ruling in R. v. Campbell reducing the appellant’s sentence for manslaughter from eleven years to seven years. (here) On the day scheduled for the preliminary inquiry on a charge of murder, the appellant entered a guilty plea to manslaughter based on an agreement with the prosecutor that a joint submission would be made for a sentence of seven years imprisonment. The unlawful act underlying the manslaughter was pointing a firearm. The state did not assert that the unlawful act was discharging a firearm because it was an agreed fact that the appellant did not know the gun was loaded. The sentencing judge, however, had “great reservations” about the “fitness” of the joint submission and reasoned that the pointing of the firearm fell within the third category of the paradigm developed by the Alberta Court of Appeal in R. v. Laberge. (here) In other words, the sentencing judge held that the unlawful act put the victim at risk of, or caused, a life-threatening injury. The decision in Campbell provides an opportunity to review the general principles of law governing joint submissions and two other rulings that complete a trilogy of important judgments by the Alberta Court of Appeal.
2. The Test
The leading case is the opinion of the Supreme Court of Canada in R. v. Anthony-Cook where the court addressed a narrow issue of whether the trial judge erred in departing from a joint submission proposed by the parties and a broader issue “concern[ing] the legal test trial judges should apply in deciding whether it is appropriate in a particular case to depart from a joint submission.” (here) Writing for a unanimous court, Justice Michael Moldaver adopted the “public interest” test developed in the Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (1993) that trial judges “should not depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute, or is otherwise not in the public interest”. But, as Justice Moldaver asked – what does this threshold mean?
The question was answered by adopting the ruling in R. v. Druken where the Newfoundland and Labrador Court of Appeal held that a joint submission will bring the administration of justice into disrepute or be contrary to the public interest when it is “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 in the proper functioning of the criminal justice system”. (here) Justice Moldaver went on to emphasize that a joint submission should not be rejected lightly. “Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons […] to believe that the proper functioning of the justice system had broken down,” he said.
3. The Trilogy
The two cases that complete the Alberta trilogy are R. v. Belakziz and R. v. Naslund. (here and here) In Belakziz, the appellant pled guilty to conspiracy to commit bank robbery but a joint submission for a sentence of six months less one day and two years probation was rejected by the sentencing judge. The appellant was sentenced to two years less one day that was reduced to eighteen months for reasons of pre-trial custody and delay. After observing that the “starting point” for robbery of a financial institution is five years, the sentencing judge held that a joint submission will bring the administration of justice into disrepute or otherwise be contrary to the public interest when “it does not adequately reflect the general principles of sentencing”. In reducing the sentence to six months less one day, recognized as “arguably lenient”, the Alberta Court of Appeal held that, “[a]n overly intensive scrutiny of the positions of the Crown and the defence, the negotiating abilities of each, and the strength of the case undermines the certainty of joint submissions.”
In Naslund, an unusual case where the joint submission was higher than the sentence substituted on appeal, the appellant argued that her eighteen year sentence for manslaughter was “unduly harsh” because it failed to take into account that she was a “battered woman” who “having endured a physically abusive 27-year marriage, killed her husband rather than continu[e] to risk being killed herself.” Writing for the majority of the Alberta Court of Appeal, Justice Sheila Greckol held that the joint submission of eighteen years misconceived the appellant’s moral blameworthiness “by failing to recognize the significantly mitigating circumstances under which she killed her husband.” Although the battered wife syndrome may have been insufficient to establish self-defence, it was “highly relevant” as a “significant mitigating factor in sentencing.” The joint submission was therefore “unhinged from the circumstances of the offence and the offender” and a nine year sentence was substituted.
What, then, are the guardrails that may be deduced from Belakziz, Naslund and Campbell that inform the exercise of judicial discretion? I will highlight two important statements of general application from each case that may be of value to junior criminal lawyers in the assessment of whether a specific resolution proposal fulfills the public interest test.
- While the sentence that might have resulted after trial is relevant, it is an unhelpful approach to start the analysis by reverse engineering the joint submission. In other words, it is inappropriate to first determine what sentence would have been imposed after trial, and then compare it to the joint submission. This inevitably invites a conclusion that the joint submission would bring the administration of justice into disrepute merely or primarily because it departs from the conventional sentence. Rather, the analysis should start with the basis for the joint submission, including the important benefits to the administration of justice, to see if there is something apart from the length of the sentence that engages the broader public interest or the repute of the administration of justice. (Belakziz, at para. 18)
- The sentencing reasons, in essence, conclude that the Crown made a “bad deal”. They conclude that the Crown conceded too much because of the perceived weaknesses in the evidence, and the collateral immigration consequences… [T]he sentencing judge can inquire into the circumstances leading to the joint submission, but that does not justify a minute re-examination of the costs and benefits achieved by each side… [I]t is not intended that the sentencing judge will become a “supervising prosecutor” […]. The fact that the Crown does not proceed with a prosecution unless there is a reasonable prospect of success does not preclude the Crown from conceding weaknesses in its case. Joint submissions are encouraged for more reasons than the strength or weakness of the case: avoiding trial, saving court time, sparing witnesses, or gaining the cooperation of offenders. (Belakziz, at para. 23)
- Given that the joint submission was accepted, one might wonder whether a party to that agreement should be precluded from challenging it on appeal. After all, Ms. Naslund is effectively seeking to resile from the position taken by her counsel below (who is not her appellate counsel). However, the law is clear that a sentence agreed to by Ms. Naslund is not immune from review. Appellate courts will continue to consider whether such a sentence should nevertheless be set aside because it brings the administration of justice into disrepute […]. As the Ontario Court of Appeal noted in R v Wood, […] “the accused is given greater latitude than the Crown on an appeal of this kind in that he is generally not bound to the same extent by the submissions of his counsel as to sentence”. (Naslund, at para. 81)
- [A]n accepted joint submission is most susceptible to appellate intervention in circumstances where […] the Crown agrees to reduce murder to manslaughter in exchange for a higher manslaughter sentence. As noted in Gregory Lafontaine & Vincenzo Rondinelli, “Plea Bargaining and the Modern Criminal Defence Lawyer: Negotiating Guilt and the Economics of 21st Century Criminal Justice […]: A negotiated but excessive sentence flowing from a joint submission is most likely to result in situations of a Crown agreement to a reduction in the level of liability, i.e. murder to manslaughter, with an attached condition that the defendant agree to submit to the imposition of a particular sentence. If the bargain results in a sentence that is excessive, the defendant has a viable argument on appeal for a sometimes very significant reduction. (Naslund, at para. 85)
- [W]hen deciding if a joint submission is so unhinged from the circumstances of the offence and the offender as to bring the administration of justice into disrepute no one set of inferences is conclusive. Rather, the question is whether there is a reasonable interpretation of the admitted facts that would support the joint submission, even if other reasonable (or even preferable) interpretations are possible. A joint submission that is consistent with one reasonable interpretation of the admitted facts would not bring the administration of justice into disrepute. (Campbell, at para. 22)
- It would be inappropriate for a sentencing judge to refuse to follow a joint submission in a manslaughter case merely because of a disagreement over the proper characterization of the manslaughter offence in question. As noted, the joint submission must be “unhinged from the circumstances of the offence and the offender” before it should be rejected. If the joint submission is based on a reasonable categorization of the offence, it would not bring the administration of justice into disrepute just because the sentencing judge would categorize the offence differently. (Campbell, at para. 31)
The trilogy of Belakziz, Naslund and Campbell gives effect to the “high threshold for departing from joint submissions” mandated by Anthony-Cook where Justice Moldaver held that the threshold is “appropriate” and “necessary to obtain all the benefits of joint submissions”. Although the high threshold arguably places the strictest guardrail on the discretion of sentencing judges, it is appropriate because the prosecutor and defence counsel are “well placed to arrive at a joint submission that reflects the interests of both the public and the accused.” Nevertheless, as Justice Moldaver emphasized, counsel must be prepared to inform the sentencing judge why the proposed sentence would not bring the administration of justice into disrepute or be contrary to the public interest, although they are not required to disclose their “negotiating positions” or “the discussions leading to the agreement”.
The legal regime governing plea bargaining sets a trap for all defence lawyers, not only junior ones. It is a mistake to assume the work is done when the deal is sealed and then take shelter in the high threshold imposed on sentencing judges to justify departures from joint submissions because it risks overlooking the obligation of counsel to inform the sentencing judge why any joint submission is not contrary to the public interest. That obligation, mandated by Anthony-Cook, is inherent in the right to counsel. In the companion opinions in Missouri v. Frye (here) and Lafler v. Cooper (here) the United States Supreme Court held that the Sixth Amendment right to counsel extends to plea bargaining. Writing for the majority in both cases, Justice Anthony Kennedy emphasized the “modern reality” that plea bargains have become “so central to the administration of the criminal justice system” that defence counsel have responsibilities to ensure that defendants receive the adequate assistance of counsel at critical stages of the criminal process. In Lafler, Justice Kennedy rejected the petitioner’s position that a fair trial “wipes clean ineffective assistance during plea bargaining” because it ignores that “criminal justice today is for the most part a system of pleas, not a system of trials.” Reliance on the high threshold is not a substitute for good preparation.