What is the Anthony-Cook “Public Interest Standard”? A New Canada-Wide Standard for Joint Submissions on Sentencing

Introduction 

In R v Anthony-Cook, 2016 SCC 43, the Supreme Court of Canada adopted the “public interest” standard that trial judges across Canada are to employ to asses a joint submission on sentencing. While the case seeks to provide greater clarity for courts, prosecutors, accused persons, and their counsel, understanding the standard and what it requires will take some time and adjustment.  Additionally, it will be important to pay attention to how the standard is applied where especially vulnerable accused persons are implicated.

Analysis at the Supreme Court of Canada

Varying Standards

The Court’s purpose in this case was not only to determine whether this appellant’s sentence was appropriate, but also to make a final determination on what standard trial judges should employ for joint sentencing submissions. Prior to Anthony-Cook, courts were using divergent standards, including “fitness,” “demonstrably unfit,” or a “public interest” standards, or a mix of all three.

The standards vary in their stringency, and the Court ultimately held that the most stringent and appropriate approach is the public interest standard. The Court rejected the lower court’s use of a “fitness,” which does not show sufficient deference to the joint submission, allowing a trial judge to disregard a joint submission to come to an independent decision regarding the appropriate sentence.

The Public Interest Standard and the Importance of Deference 

The public interest standard requires that a trial judge impose the joint submission “unless the proposed sentence would bring the administration of justice into disrepute, or is otherwise not in the public interest” (para 29). Justice Moldaver wrote for a unanimous court that the standard “best reflects the many benefits that joint submissions bring to the criminal justice system and the corresponding need for a high degree of certainty in them” (para 31). 

The Court’s support for the public interest standard is based on the importance of plea bargaining in maintaining the criminal justice system. Plea bargaining and joint submissions, the Court acknowledges, are helpful to each party involved in the system. First, and perhaps most obviously, the more plea deals are struck, the more the courts’ burdens are reduced. The Crown also benefits by not needing to use resources to take every matter to trial.

The accused person has a lot to lose, and the Court explains that the rights and benefits of going to trial and taking advantage of the presumption of innocence are not given up lightly. Thus, in exchange for making a plea deal, the accused must receive a high level of certainty. This is perhaps the most simply put and reasoned rationale for the accused’s bargaining power being given precedence over judicial review. As the intervenors, the Criminal Lawyers Association, put it: a plea bargain, and thus, a joint submission on sentence, involves a quid pro quo, which must be given a great amount of weight (para 25).

Applying the Standard in Practice: Goals and Challenges

The benefits of public interest standard

While the SCC does not say so explicitly, this decision seems to place a great amount of weight on and deference to both the skills and expertise of lawyers, and the agency of accused persons in their own criminal process. Accused persons are not subject to the criminal justice system by choice. But plea bargaining allows some accused persons, depending on their circumstances, to take control over the process. Specifically, the use of joint submissions on sentencing in theory provides accused persons with meaningful autonomy regarding what they are willing to accept to forego their right to a trial and the benefit of the presumption of innocence. However, as I will explain below, it might not always be the case that every accused feels they have agency and control over this aspect of the process.

Protecting the accused in practice

Moldaver provides a series of tips for trial judges in using the public interest standard, which allow us to look slightly ahead at how some might interpret the standards that might help to relieve some of the concerns with its application.

Moldaver suggests the following (para 49-60):

1. Judges should take a submission “as-is” and assume that aspects of sentencing not included were intentionally excluded by the lawyers;
2. Depending on if the trial judge is reducing or increasing the sentence, different interests will be at play that they will need to take into account;
3. The trial judge should view a contentious joint submission through how much benefit each party is receiving;
4. In circumstances where the trial judge is unsatisfied, counsel needs to get the opportunity to make further submissions on the appropriateness of the standard;
5. If those concerns remain, the accused may be given the opportunity to withdraw their plea (though the court chooses not to determine what the circumstances must be), and;
6. If the judge is not satisfied by counsel’s submissions, they may vary a joint submission and provide reasons.

Moldaver’s guidance provides a bit of insight into how lower courts should approach application of the standard, but leaves some questions in terms of where the vulnerabilities of the accused will be accounted for and to what extent. It will be interesting to see how both procedural and systemic realities will impact the standard’s use. For example, will lower courts vary their application of the standard if the accused is Aboriginal as they would in their own sentencing determinations? Will the accused person’s history with drug use impact how courts view the sentence they and their counsel agree to? In his guidance for trial judges, Moldaver does note that when the trial judge is making a determination on whether a suggested sentence is too severe, they must take into account any power imbalances, specifically where the accused is unrepresented or in custody during sentencing. While this suggests that some procedural realities might be relevant, it does not indicate to what extent a judge should be encouraged to defer in these circumstances. It also does not speak to the other relevant circumstances of the accused that typically impact their sentence in a regular sentencing hearing.

Additionally, the intervenors speak to the many concerns that critiques have over the phenomenon of plea bargaining, which was unfortunately a conversation lost by the time the Court rendered this decision. The Criminal Lawyers Association writes in their factum that while plea bargaining is vital to Canada’s criminal justice system, plea deals may compel innocent people to take agreements instead of undergoing a stressful trial (para 24). While the Intervenor’s agree that the public interest standard is best positioned to deal with these concerns and inequalities, their concerns ought to have been fleshed out better to provide guidance to trial courts. The Court focuses a great deal on how important plea bargaining is to the administration of justice, but fails to touch on most of the problematic social, economic, and legal realities that sometimes unfairly induce an accused to enter a plea.

Meaning of “public interest”

The Court’s use of the terminology “public interest” itself leaves many questions, including what exactly it means for something to be within the public interest. The Court’s definition of public interest in this context is that the submission must be “so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of tall the relevant circumstances including the importance of promoting certainty in resolution discussions, to believe that the proper functions of the justice system had broken down” (para 34). However, the term “public interest” carries a lot of interpretive baggage due to its frequent use in other contexts, and the Court’s description fails to provide much assistance in the joint submission context. Moreover, the definition is malleable, and has the potential of being subjectively determined by individual trial judges.

Conclusion

While the Court sends a general message that joint submissions are to be accepted by judges unless the high public interest standard is met, the Court should have devoted more to assessing the fairness issues that an accused—particularly a socially disadvantaged accused—might face in deciding to enter a plea and how they standard must be adapted to alleviate these concerns. Ultimately, this case provides some sense of uniformity to lower courts, but whether or not the court has provided the necessary guidance to assure consistency in application and to protect interests of the accused remains to be seen.