Why Courts Should Accept Joint Submissions
Original article: November 14, 2016 | By Hans 'John' Kalina | Reviewed and updated October 7, 2026
A genuine joint submission allows the Crown and defence to recommend an agreed sentence in connection with a guilty plea. It offers important certainty, but is not an unconditional promise that the court will impose that sentence. Counsel must understand the agreement, explain it to the client and present its justification to the court.
The public-interest test in Anthony-Cook
In R. v. Anthony-Cook, 2016 SCC 43, the Supreme Court set a high threshold for departing from a joint sentencing submission. A judge should do so only where the proposal would bring the administration of justice into disrepute or otherwise conflict with the public interest. The question is not simply whether the judge would personally prefer a different sentence.
The high threshold recognizes the value of informed resolution discussions: the accused gives up a trial, the Crown obtains a resolution it is prepared to accept, victims and witnesses may avoid a trial, and court resources are conserved. The agreement must be assessed with the circumstances that produced it, including evidentiary weaknesses, concessions and benefits to the prosecution.
What counts as a joint submission?
The later decision in R. v. Nahanee, 2022 SCC 37 makes the distinction important. A joint submission covers the entire proposed sentence. Agreement on only some components does not attract the Anthony-Cook test to those components in isolation. If the parties disagree about imprisonment, conditions or ancillary orders, or advance different sentencing ranges, sentencing may remain contested despite a negotiated guilty plea.
In a contested sentencing hearing, the public-interest test for joint submissions does not apply. Nahanee nevertheless requires a judge contemplating a harsher sentence than the Crown proposes to notify the parties and give them an opportunity to make further submissions. That procedural safeguard should not be confused with a guarantee that the Crown’s position is the maximum possible sentence.
The proposal must be lawful and fully explained
Anthony-Cook directs the court to assess a joint submission as a whole. The protection applies when a judge considers increasing or reducing the proposed sentence, or adding an unrequested component. Mandatory orders cannot simply be omitted to preserve an agreement. Counsel must identify the governing legislation and any legally required orders or exceptions.
The Crown and defence should provide the relevant facts about the offence and offender and explain the agreement without waiting to be asked. If information cannot properly be disclosed publicly, counsel must consider an appropriate lawful procedure. A bare recommendation without an explanation does not provide the court with a sufficient basis for assessment.
If the judge has concerns
The judge should identify the concern and allow counsel to make further submissions before departing from the proposal.
Counsel may need to clarify the agreement, address the legal basis or provide further relevant information.
The accused may seek permission to withdraw the plea in appropriate circumstances; withdrawal is not automatic simply because the judge questions the proposed sentence.
If the court ultimately departs from the joint submission, it should give clear reasons explaining why the high threshold is met.
The guilty plea still needs to be informed and voluntary
The safeguards in section 606 of the Criminal Code apply. The accused must understand the charge, the admission, the consequences and the court’s role. Counsel should explain whether the sentence is genuinely joint, what has been agreed, which orders are included and which collateral consequences remain outside the sentencing agreement. To Plead or Not to Plead? discusses the broader decision.
Practical questions before agreeing
Does the agreement address every part of the proposed sentence, including conditions and ancillary orders?
Is the proposal lawful, and have required orders and relevant exceptions been considered?
What concessions, evidentiary issues and benefits explain the recommendation?
What consequences may still follow for immigration, licensing, employment or travel?
What will happen if the judge raises concerns, and what advice is needed before responding?
Related guidance
For advice about your circumstances, contact our office. This article provides general information, not legal advice.