It happens infrequently, but when it does, it can be really unsettling.

After a lengthy and considered discussion with the Crown, counsel agrees to what is called a joint submission. It is an agreement between the Crown and defence counsel to recommend a particular sentence to the justice, in exchange for the defendant entering a plea of guilty. But when you finally get to court to complete the plea and sentencing, the presiding justice disagrees with the fitness of the proposed sentence and “jumps” the agreement, imposing a more substantial sentence on the defendant.

In regulatory prosecutions frequently presided over by justices of the peace, jumping is enough of a risk that before agreeing to proceed with a joint submission, clients should be apprised of it. It may be more of a risk in regulatory compared to criminal prosecutions because the predominant sanction in the former is a fine. In cases of companies admitting guilt to environmental or workplace safety or other serious regulatory offences, one gets the sense that some justices conclude that adding another 10 or so per cent over the proposed quantum is harmless, particularly when the defendant appears large and commands what must be substantial financial resources.

If a justice starts expressing concerns about fitness, it is only to be expected that the Crown will “defend” the joint submission along with defence counsel. Most Crowns do. But occasionally you encounter one that does not. Predictably, the joint submission falls apart and your client pays the price.

The risk of jumping hinders the resolution of prosecutions without the need of trials. That is not a desirable outcome because resolutions promote fairness and efficiency in the courts. Absent conditions that promote resolutions without a trial, the burden on our courts would be oppressive.

Fortunately, this is exactly the position the Supreme Court recently took in R. v. Anthony-Cook. Writing for a unanimous court, Moldaver J. concluded that joint submissions are an accepted and acceptable means of resolution. They “are vital to the efficient operation of the criminal justice system.” As a result, justices “should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest.”

What does that mean? Moldaver J. continued: “A joint submission should not be rejected lightly, a conclusion with which I agree.  Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down.”

That is a very high threshold, but one that is necessary to promote confidence in joint submissions as an effective means of resolution. This is a welcome judgement.