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The General Rule

R. v. MacIvor, 2003 NSCA 60 Cn, Per Cromwell, JA:

[33]         The tendency in most courts of appeal in recent years has been to emphasize the weight that should generally be given to joint recommendations following a plea agreement.  Some courts have gone so far as to adopt the principle that a joint submission should only be rejected if accepting it would be contrary to the public interest and otherwise bring the administration of justice into disrepute: R. v. Dewald 2001 CanLII 4721 (ON C.A.), (2001), 156 C.C.C. (3d) 405 (Ont. C.A.); R. v. Cerasuolo 2001 CanLII 24172 (ON C.A.), (2001), 151 C.C.C. (3d) 445 (Ont. C.A.); R. v. Dorsey 1999 CanLII 3759 (ON C.A.), (1999), 123 O.A.C. 342 (C.A.); R. v. T.M.N. (2002), 172 B.C.A.C. 183 (C.A.); R. v. Hatt 2002 PESCAD 4 (CanLII), (2002), 163 C.C.C. (3d) 552 (P.E.I.S.C.A.D.) at paras. 15 & 18.  Many of the relevant authorities were reviewed by Fish, J.A., writing for the Court, in R. v. Verdi-Douglas reflex, (2002), 162 C.C.C.(3d) 37 (Que. C.A.):

[42] 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.

[43] 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".

                                                               . . .

[51] In my view, a reasonable joint submission cannot be said to "bring the administration of justice into disrepute". An unreasonable joint submission, on the other hand, is surely "contrary to the public interest". Accordingly, though it is purposively framed in striking and evocative terms, I do not believe that the Ontario standard [i.e. that the jointly recommended sentence is contrary to the public interest and would bring the administration of justice into disrepute] departs substantially from the test of reasonableness articulated by other courts, including our own. [The] shared conceptual foundation [of these various formulations of the principle] is that the interests of justice are well served by the acceptance of a joint submission on sentence accompanied by a negotiated plea of guilty -- provided, of course, that the sentence jointly proposed falls within the acceptable range and the plea is warranted by the facts admitted.

(Emphasis added)

[34]         I respectfully agree with and would adopt the last sentence of this quoted passage.


R. v. McCabe, 2009 NSCA 50 Cn

[5]              The law on this issue is clear.  A judge who is considering rejecting a joint recommendation should so advise counsel and provide them with an opportunity to justify the recommended sentence. (R. v. MacIvor, 2003 NSCA 60 (CanLII), 2003 NSCA 60; R. v. G.P., 2004 NSCA 154 (CanLII), 2004 NSCA 154; and R. v. Cromwell, 2005 NSCA 137 (CanLII), 2005 NSCA 137).  In not doing so here the judge erred and leave to appeal should be granted.  We refer to the statement of principles governing joint submissions approved in R v G.P., supra, at para. 15, and in particular principles # 2 and # 4.

Jim O'Neil, LL.B.

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