R. v. DeSousa, 2012 ONCA 254 (CanLII)
Lien vers la décision
[15] Resolution discussions between informed and competent counsel and guilty pleas based on joint submissions as to the disposition are a “proper and necessary part of the administration of criminal justice in Ontario”: The Honourable G. Arthur Martin, O.C., O. Ont., Q.C., LL.D., Chair, Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (Martin Report) (Toronto: Ontario Ministry of the Attorney General, Queen’s Printer for Ontario, 1993), at p. 290; see further pp. 281-290. A joint submission should provide the trial judge not only with the proposed sentence, but with a full description of the facts relevant to the offender and the offence. Advanced in this way, the joint submission gives the trial judge a proper basis upon which to determine whether it should be accepted.
[16] A trial judge is not bound by a joint submission. The imposition of a fit sentence is ultimately the trial judge’s responsibility: see R. v. Cerasuolo 2001 CanLII 24172 (ON CA), (2001), 151 C.C.C. (3d) 445, at para. 7 (Ont. C.A.). Trial judges must, however, give considerable weight to joint submissions. A trial judge should depart from a sentence proposed in a joint submission only in limited circumstances. Finlayson J.A. put it this way in Cerasuolo, at para. 8:
This court has repeatedly held that trial judges should not reject joint submissions unless the joint submission is contrary to the public interest and the sentence would bring the administration of justice into disrepute... This is a high threshold and is intended to foster confidence in an accused, who has given up his right to a trial, that the joint submission he obtained in return for a plea of guilty will be respected by the sentencing judge.
[17] The trial judge referred to Cerasuolo. He viewed it as applicable only where a trial judge proposed to “jump” a joint submission.
[18] Cerasuolo was a case in which a trial judge imposed a three-year sentence in the face of a joint submission for one year. Unsurprisingly, Finlayson J.A. emphasized the negative impact on the accused’s legitimate interests flowing from the trial judge’s rejection of the joint submission. Cerasuolo did not, however, indicate that a trial judge should not be guided by the same principles before deciding to depart from a joint submission by imposing a more lenient sentence than that proposed. That question was not before the court in Cerasuolo.
[19] The Martin Report, the most important examination of the criminal process in Ontario in the last 40 years, made several recommendations relating to plea discussions and joint submissions. Following established authority and using language that would appear later in Cerasuolo, the Martin Report recommended that a sentencing judge should not depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute, or was otherwise not in the public interest: see p. 327, Recommendation 58. The Martin Report did not distinguish between “jumping” and “undercutting” a joint submission.
[20] It is helpful to quote at some length the explanation offered in the Martin Report, at pp. 328-30, for this particular recommendation:
The Committee recognizes that an important, sometimes the most important, factor in counsel’s ability to conclude a resolution agreement, thereby deriving the benefits that such agreements bring, is that of certainty. Accused persons are, in the Committee’s experience, prepared to waive their right to a trial far more readily if the outcome of such a waiver is certain, than they are for the purely speculative possibility that the outcome will bear some resemblance to what counsel has agreed to. And likewise, from the perspective of Crown counsel, agreed upon resolutions that have a stronger, rather than weaker sense of certainty to them, are more desirable because there is less risk that what Crown counsel concludes is an appropriate resolution of the case in the public interest will be undercut.
…
While the presiding judge cannot have his or her sentencing discretion removed by the fact of there being a joint submission, it is nonetheless appropriate, in the Committee’s view, for the sentencing judge to have regard to the interest of certainty in resolution discussions when faced with a joint submission. Accordingly, where there is no reason in the public interest or in the need to preserve the repute of the administration of justice to depart from a joint submission, a sentencing judge should, in the Committee’s opinion, give effect to the need for certainty in agreed upon resolutions by accepting the joint submission of counsel.
...
...proceeding in this manner also continues to ensure that the sentencing judge remains the ultimate arbiter of the propriety of the sentence, and that the sentence is demonstrated to be fit in the circumstances. The sentencing judge will not, in the Committee’s view, have committed any error in principle in accepting a joint submission, as recommended above, provided he or she arrives at the independent conclusion, based upon an adequate record, that the sentence proposed does not bring the administration of justice into disrepute and is otherwise not contrary to the public interest. [Emphasis added.]
[21] The Martin Report recognizes that certainty of result plays a valuable role in the criminal justice system. The report also recognizes that certainty serves not only the interests of the accused, but those of the Crown as representative of the public interest. To the extent that judges reject joint submissions, certainty suffers. This is true whether the judge “jumps” or “undercuts” the joint submission.
[22] Certainty of result is, of course, not the ultimate goal of the sentencing process. Certainty must yield where the harm caused by accepting the joint submission is beyond the value gained by promoting certainty of result. The standard described in both Cerasuolo and the Martin Report – that is, whether the proposed sentence would bring the administration of justice into disrepute or would otherwise not be in the public interest – draws the line where certainty of result must give way to other criminal justice interests. I think the standard is applicable regardless of whether a trial judge is inclined to go above or below the sentence proposed in the joint submission.
[23] In holding that a trial judge should apply the same test when deciding whether to depart from a joint submission, upward or downward, I do not suggest that the factors relevant to the application of that standard will be identical in both situations. If a trial judge is considering imposing a higher sentence than the sentence agreed upon, concerns about the fairness to an accused who has given up a right to a trial in anticipation of a certain sentence will figure largely in the trial judge’s determination of whether the agreed upon sentence in the joint submission is so low as to bring the administration of justice into disrepute or is otherwise not in the public interest. Obviously, concerns about the accused’s fair trial rights are not in play if the trial judge is considering imposing a sentence that is lower than the agreed upon sentence.
[24] As alluded to in the extract from the Martin Report set out above, where a judge is considering “undercutting” a joint submission, he or she must have regard to the community’s reasonable expectations that the court will impose a sentence in accordance with that agreed upon in the joint submission. Confidence in the operation of the justice system may suffer where an accused enjoys the benefits of a plea bargain, perhaps for example escaping prosecution on other more serious charges, but is not required to serve the sentence agreed upon as part of that bargain. In deciding whether to reject the joint submission, trial judges must be alive to that potential negative impact on the administration of justice. The consideration of that potential impact finds expression in the standard articulated in Cerasuolo and the Martin Report.
Aucun commentaire:
Publier un commentaire