OPINION: Judges should be able to ‘tinker’ with joint submissions

Supreme Court says ‘no’ but the public might see justice in disrepute despite claims of Crown

Should a judge be allowed to deviate from a joint submission by Crown and defence on sentencing of an offender if the sentence proposed doesn’t seem right?

No.

That’s what the Supreme Court of Canada said, more or less, in the precedent-setting case of R v Cook from 2016. Matthew John Anthony-Cook had drug addiction and mental health issues. He punched a volunteer at a Vancouver drop-in centre. The man fell, suffered a fractured skull and died.

Cook pleaded guilty to manslaughter, agreeing to a joint submission of 18 months jail with no probation. A BC Supreme Court justice, however, rejected the joint submission arguing that it did not give enough weight to the standard principles of sentencing, “denunciation, deterrence, and protection of the public.”

The judge essentially said “no” to the joint submission of 18 months, instead handed down two years in jail followed by three years probation. The B.C. Court of Appeal agreed with the rejection of the joint submission, but the case went all the way to the Supreme Court of Canada.

It was there that the highest court, in a decision delivered by Justice Michael Moldaver, stated that the BC Supreme Court justice who veered from the joint submission erred in that the judge applied a “fitness of sentence” test when instead what is appropriate is the standard test of whether a sentence brings “the administration of justice into disrepute, or would otherwise be contrary to the public interest.”

Last week in provincial court, Crown counsel Grant Lindsey answered a series of questions put forth by Judge Andrea Ormiston about a joint submission from Lindsey and defence lawyer Darrel Schultz. The two men suggested one year in jail was suitable for the case of a man who sexually assaulted, but also shamed and mentally tormented, a girl over an extended period of time.

With the disturbing facts put to the court, Ormiston questioned the Crown about the sentence.

(Of separate note, the name of the accused in this case cannot be reported due to the Crown’s application for an extension of the publication ban to the name or identifying information of the victim to extend to the name of the offender. Judge Ormiston has not yet ruled on that ban, but it is in place in the meantime.)

In court on May 30, Lindsey answered many of the questions. This is also where he brought up R v Cook.

The decision issued by Justice Moldaver states that a joint submission “should not be rejected lightly.”

“Joint submissions promote the smooth operation of the criminal justice system,” Moldaver wrote. “The appellant gave up his right to a trial and any self-defence argument he may have had. In the end, the trial judge’s deviation from the recommended custodial sentence — by only six months — amounts to little more than tinkering.”

In the case here in Chilliwack, the maximum sentence allowable for the charge Crown agreed to accept a guilty plea on is 18 months. And the joint submission is one year. Based on Cook, I guess that’s “tinkering.”

But from this layperson’s perspective, the Cook decision seems to tell lower court judges, “No, no, you aren’t the judge. If the Crown and defence get together to sweep something and a rug is nearby, don’t look under. Just nod and approve.”

There is a lot of criticism of our criminal justice system, and particularly in extreme examples when people who have watched too much U.S. crime drama on TV think Canadian offenders are getting off easy. I mostly disagree with those people since the purpose of sentencing is deterrence and denunciation but also rehabilitation.

Judges are bound by precedents. But there is no objectivity in sentencing as the individual mitigating and aggravating factors in a case mean a judge could sentence accordingly with the law and public sentiment about certain crimes.

Is it contrary to say a judge should listen at to public sentiment? I don’t think so.

In the local case in question there has been outrage about what seems like a light sentence. All sentencing decisions are measured as to whether they bring the administration of justice into disrepute.

Disrepute from whose perspective? The public, since that’s within the definition of “disrepute.”

“It can’t be said that a 12-month jail sentence would bring the administration of justice into disrepute but an 18-month sentence wouldn’t,” Lindsey told the court.

I’m not a lawyer, but as a layperson in the gallery I disagree.

Populist cries to “hang ‘em high” whenever a crime is committed is screaming into the abyss, especially as judges rely on precedents.

But if judges can make incremental moves to those precedents by “tinkering”, as Justice Moldaver put it, maybe we can tinker our way closer to some real justice.

Tinker away, I say.

• RELATED: Former Chilliwack sports coach charged with sexually assaulting youth


@PeeJayAitch
paul.henderson@theprogress.com

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