R. v. Anthony-Cook (M.J.), [2016] B.C.A.C. TBEd. OC.030

JudgeAbella, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ.
CourtSupreme Court (Canada)
Case DateOctober 21, 2016
JurisdictionCanada (Federal)
Citations[2016] B.C.A.C. TBEd. OC.030;2016 SCC 43

R. v. Anthony-Cook (M.J.), [2016] B.C.A.C. TBEd. OC.030

MLB being edited

Currently being edited for B.C.A.C. - judgment temporarily in rough form.

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2016] B.C.A.C. TBEd. OC.030

Matthew John Anthony-Cook (appellant) v. Her Majesty the Queen (respondent) and Director of Public Prosecutions of Canada, Attorney General of Ontario, Criminal Lawyers' Association (Ontario), Association des avocats de la défense de Montréal and British Columbia Civil Liberties Association (interveners)

(36410; 2016 SCC 43; 2016 CSC 43)

Indexed As: R. v. Anthony-Cook (M.J.)

Supreme Court of Canada

Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ.

October 21, 2016.

Summary:

The 29 year old accused had a long-standing mental health disorder (psychotic) and substance abuse issues. The accused was asked to leave a drop-in centre due to his anger and difficult behaviour. Outside the centre, a volunteer yelled at the accused to "smarten up". He pursued the accused and grabbed him by the shoulders. The accused responded by throwing punches to his head and neck. The volunteer was knocked out. He fell, hit his head on the pavement, and died. The accused pleaded guilty to manslaughter. He had a criminal record of 20 prior convictions since 2007 (break and enters, theft, mischief and assault). He was on probation at the time of the manslaughter. The accused and Crown jointly recommended a sentence of 18 months' imprisonment (with no probation), in addition to pre-trial custody spent in jail and in hospital.

The British Columbia Supreme Court, in a judgment reported [2014] B.C.T.C. Uned. 1503, rejected the joint submission as failing to give adequate weight to the principles of denunciation, deterrence and protection of the public. The court held that an appropriate sentence was three years' imprisonment, less 366 days' credit for pre-trial custody in jail, for a net sentence of imprisonment for two years less a day. The court also imposed three years' probation. The accused appealed.

The British Columbia Court of Appeal, in a judgment reported (2015), 367 B.C.A.C. 96; 631 W.A.C. 96, dismissed the appeal. The sentencing judge gave the parties notice that he would possibly not accept the joint submission and gave them an opportunity to make further submissions. The judge's detailed reasons for rejecting the joint submission showed that he gave it careful consideration before rejecting it. The trial judge did not err in fixing the appropriate range of sentence at 3-5 years, in giving credit for pre-trial custody, or in imposing three years' probation, including a condition precluding consumption of illegal drugs. The additional six months' imprisonment plus three years' probation was not a significant departure from the jointly recommended sentence. The accused appealed.

The Supreme Court of Canada allowed the appeal. The jointly recommended sentence should have been accepted, as it would not bring the administration of justice into disrepute and was not contrary to the public interest.

Criminal Law - Topic 5813

Sentencing - Sentencing procedure and rights of the accused - Plea bargain or joint submission - Effect of - The Supreme Court of Canada stated that the test for a sentencing judge considering whether to accept a joint sentencing submission was not whether the agreed upon sentence was "unfit" or "demonstrably unfit", but "whether the proposed sentence would bring the administration of justice into disrepute, or would otherwise be contrary to the public interest" - Under the "public interest" test, an agreed upon sentence should not be rejected unless the joint submission was "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. This is an undeniably high threshold - and for good reason." -See paragraphs 5, 34.

Criminal Law - Topic 5813

Sentencing - Sentencing procedure and rights of the accused - Plea bargain or joint submission - Effect of - The Supreme Court of Canada set out the following general approach to assist judges troubled by a joint sentencing submission: "First, trial judges should approach the joint submission on an 'as-is' basis. That is to say, the public interest test applies whether the judge is considering varying the proposed sentence or adding something to it that the parties have not mentioned, for example, a probation order. If the parties had not asked for a particular order, the trial judge should assume that it was considered and excluded from the joint submission. ... Second, trial judges should apply the public interest test when they are considering 'jumping' or 'undercutting' a joint submission. ... Third, when faced with a contentious joint submission, trial judges will undoubtedly want to know about the circumstances leading to the joint submission - and in particular, any benefits obtained by the Crown or concessions made by the accused. ... Fourth, if the trial judge is not satisfied with the sentence proposed by counsel, 'fundamental fairness dictates that an opportunity be afforded to counsel to make further submissions in an attempt to address the ... judge's concerns before the sentence is imposed ... The judge should notify counsel that he or she has concerns, and invite further submissions on those concerns, including the possibility of allowing the accused to withdraw his or her guilty plea ... Fifth, if the trial judge's concerns about the joint submission are not alleviated, the judge may allow the accused to apply to withdraw his or her guilty plea. The circumstances in which a plea may be withdrawn need not be settled here. ... Finally, trial judges who remain unsatisfied by counsel's submissions should provide clear and cogent reasons for departing from the joint submission." - See paragraphs 51 to 53, 58 to 60.

Criminal Law - Topic 5813

Sentencing - Sentencing procedure and rights of the accused - Plea bargain or joint submission - Effect of - The 29 year old accused had a long-standing mental health disorder (psychotic) and substance abuse issues - He was asked to leave a drop-in centre due to his anger and difficult behaviour - Outside the centre, a volunteer yelled at the accused to "smarten up" - He pursued the accused and grabbed him by the shoulders - The accused responded by throwing punches to his head and neck - The volunteer was knocked out - He fell, hit his head on the pavement, and died - The accused pleaded guilty to manslaughter - He had a criminal record of 20 prior convictions since 2007 (break and enters, theft, mischief and assault) - He was on probation at the time of the manslaughter - The accused and Crown jointly recommended a sentence of 18 months' imprisonment (with no probation), in addition to pre-trial custody spent in jail and in hospital - The sentencing judge rejected the joint submission as failing to give adequate weight to the principles of denunciation, deterrence and protection of the public - The judge held that an appropriate sentence was three years' imprisonment, less 366 days' credit for pre-trial custody in jail, for a net sentence of imprisonment for two years less a day, followed by three years' probation - The British Columbia Court of Appeal dismissed the accused's appeal - The sentencing judge gave the parties notice that he would possibly not accept the joint submission and gave them an opportunity to make further submissions - The judge's detailed reasons for rejecting the joint submission showed that he gave it careful consideration before rejecting it - The trial judge did not err in fixing the appropriate range of sentence at 3-5 years, in giving credit for pre-trial custody, or in imposing three years' probation, including a condition precluding consumption of illegal drugs - The additional six months' imprisonment plus three years' probation was not a significant departure from the jointly recommended sentence - The Supreme Court of Canada allowed the accused's appeal - The jointly recommended sentence (additional 18 months' imprisonment with no probation) should have been accepted, as it would not bring the administration of justice into disrepute and was not contrary to the public interest.

Criminal Law - Topic 5882

Sentence - Manslaughter - [See second Criminal Law - Topic 5813 ].

Counsel:

Micah B. Rankin, Michael Sobkin and Jeremy G. Jensen, for the appellant;

Mary T. Ainslie, Q.C., and Megan A. Street, for the respondent;

David W. Schermbrucker and Monica McQueen, for the intervener, the Director of Public Prosecutions of Canada;

Elise Nakelsky, for the intervener, the Attorney General of Ontario;

Joseph Di Luca and Erin Dann, for the intervener, the Criminal Lawyers' Association (Ontario);

Nicholas St-Jacques, Lida Sara Nouraie and Walid Hijazi, for the intervener, Association des avocats de la défense de Montréal;

Emily Lapper and Ryan D. W. Dalziel, for the intervener, the British Columbia Civil Liberties Association.

Solicitors of Record:

Jensen Law Corporation, Kamloops, British Columbia and Michael Sobkin, Ottawa, Ontario, for the appellant;

Attorney General of British Columbia, Vancouver, British Columbia, for the respondent;

Public Prosecution Service of Canada, Halifax, Nova Scotia, for the intervener, the Director of Public Prosecutions of Canada;

Attorney General of Ontario, Toronto, Ontario, for the intervener, the Attorney General of Ontario;

Di Luca Barristers, Toronto, Ontario, for the intervener, the Criminal Lawyers' Association (Ontario);

Desrosiers, Joncas, Nouraie, Massicotte, Montreal, Quebec and Association des avocats de la défense de Montréal, Montreal, Quebec, for the intervener, Association des avocats de la défense de Montréal;

Bull, Housser & Tupper, Vancouver, British Columbia, for the intervener, the British Columbia Civil Liberties Association.

This appeal was heard on March 31, 2016, before Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ., of the Supreme Court of Canada.

On October 21, 2016, Moldaver, J., delivered the following judgment in both official languages for the Court.

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