Rejection of Joint Plea Deal Leaves Many Questions Unanswered: Matthew John Anthony-Cook v Her Majesty the Queen

The Supreme Court of Canada (“SCC”) has recently granted leave to appeal of the BC Court of Appeal decision in Matthew John Anthony-Cook v Her Majesty the Queen, 2015 BCCA 22 [Anthony-Cook]. The appellant, Mr. Anthony-Cook, was charged with manslaughter contrary to s. 236 of the Criminal Code, RSC 1985, c C-46. Mr. Anthony-Cook is a person who has been diagnosed with a mental illness and who also suffers from an addiction to cocaine and crystal methamphetamine.

The incident that led to the charges occurred on February 9, 2013. The appellant had been at a drop-in centre that offered services to people who have mental health difficulties. The appellant had become agitated and angry, and was asked to leave the centre. Once outside, he encountered a volunteer, Michael Gregory. Mr. Gregory yelled at the appellant and told him to “…smarten up,” and subsequently followed the appellant down the street. Mr. Gregory grabbed the appellant by the shoulders and they began to push each other. The appellant attempted to punch Mr. Gregory several times but missed. Mr. Gregory backed away with his hands up, at which point the appellant punched him twice, and Mr. Gregory fell backwards and died from a skull fracture.

The finding of guilt was not the issue on appeal in this case. Rather, the issue before the BC Court of Appeal was whether the sentencing judge erred in imposing a sentence on Mr. Anthony-Cook, rather than accepting the joint plea deal reached by the Crown and the Defence. The Crown and the Defence had reached a deal that settled on 18 months of jail time for Mr. Anthony-Cook. This sentence reflected the Crown’s submission that the appropriate sentence was three years imprisonment less the amount of time spent in custody and hospital. The Defence submitted that the appropriate sentencing range was between two and three years imprisonment with appropriate credit for time spent in custody and hospital, thus resulting in 18 months imprisonment.

However, the sentencing judge made the rare move of rejecting this reasonable and appropriate deal, and imposing his own harsher sentence of three years on Mr. Anthony-Cook.

According to s. 606(1.1)(b)(iii) of the Criminal Code, “the court is not bound by any agreement made between the accused and the prosecutor.” In spite of this provision, a sentencing judge must meet a high threshold to depart from a joint sentencing proposed by the Crown and Defence. If a sentencing judge could simply reject any reasonable joint submission without any justification, plea-bargaining between the Crown and the Defence would be of little consequence. As such, the actions of the sentencing judge in the present case are a rarity.

As Justice Fish (who would later go on to become an SCC justice) stated at the Quebec Court of Appeal in R v Douglas, [2002] 162 CCC (3d) 37 (QCCA) [Douglas]:

Canadian appellate courts have expressed in different ways the standard for determining when trial judges may properly reject joint submissions on sentence accompanied by negotiated admissions of guilt.

Whatever the language used, the standard is meant to be an exacting one. Appellate courts, increasingly in recent years, have stated time and again that trial judges should not reject jointly proposed sentences unless they are ‘unreasonable,’ ‘contrary to the public interest,’ ‘unfit,’ or ‘would bring the administration of justice into disrepute’ (Douglas, paras 42-43).

This standard, as cited here differs slightly from that expressed by the BC Court of Appeal. The standard outlined above, begins from the presumption that a joint sentence submission will not be rejected unless it is “unreasonable,” “contrary to the public interest,” “unfit,” or “would bring the administration of justice into disrepute.”

This standard contrasts with the BC Court of Appeal’s simple focus on whether a sentence would bring the administration of justice into disrepute or fail to serve the public interest and the goals of “denunciation, deterrence, and protection of the public” (Anthony-Cook, para 68).

Indeed, the BC Court of Appeal was mindful of the two standards circulating at appellate level courts when it noted that there is a divergence of opinion as to whether the standard should be “not fit” or the more principled and rigorous standard of “contrary to the public interest and would bring the administration of justice into disrepute” (Anthony-Cook, para 23).

Similarly, the Crown in the instant case acknowledged that there may be a divergence in judicial opinion as to whether the standard is “not fit” or the “public interest” standard. However, the Crown also argued that it was not necessary to resolve this divergence in judicial opinion given that the sentencing judge’s explanation for the rejection of the joint submission would satisfy either standard.

In contrast, the appellant cited R v Roadhouse, 2012 BCCA 495 for the principle that a trial judge should accept a joint submission unless it would bring the administration of justice into disrepute or fail to serve the public interest. Furthermore, the appellant argued that the judge had erred in the assessment of the appropriate range of sentence, in that the judge had placed too much emphasis on the appellant’s criminal record without giving appropriate weight to his vulnerability. As such the appellant argued that the judge determined the moral blameworthiness of the appellant at a level that was not in-line with the circumstances of the offence. Thus, the appellant contended that the judge had erred in determining that a sentence of less than three years would be unfit.

Furthermore, the issue of the appellant’s time spent in mental health facilities prior to trial was considered in terms of whether it could be taken into account in reducing his jail time. The sentencing judge contended that although the appellant had been detained in a mental health facility and his liberty was restricted, the time spent in the facility was not penal in nature.

In contrast, the appellant argued that although the psychiatric confinement was meant to be therapeutic, it was nevertheless intended to fulfill sentencing goals of rehabilitation and the protection of the public. As a result, the appellant argued that the psychiatric detention should have been considered for sentencing credit.

The unstated but lurking-in-the-background issues of how courts deal with offenders with mental health and addiction concerns is relevant in this case. Although time spent in mental health institutions may in fact be similar to that of penal institutions, with respect to the impact on liberty, there is still a perception that the former fails to be an adequate form of sentencing.

Similarly, the treatment that prisoners with mental health concerns face in jail is also problematic. A recently launched class action lawsuit on behalf of prisoners who have been subject to solitary confinement and inadequate treatment hopes to bring these issues to light.

In addition, this case also raises the issue of the divergence among courts as to when to depart from a joint sentence submission. Given that appellate courts cannot agree on the standard that must be met before a plea deal is rejected, it is fitting that the SCC has granted leave to appeal in this case.

Indeed there is a real need for the SCC to clarify the standard once and for all, and for the reason that a joint sentence submission may be more likely to be accepted depending on the province where the trial is held. As such, this case will be an important one to watch in hopes that the standard for rejecting a joint sentencing submission will be clearly and properly articulated by the SCC.

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