A Partial Joint Submission is Joint Nonetheless

In R v Manca, 2019 BCCA 280, the BC Court of Appeal held that a joint submission as to part of a sentence would constitute a true joint submission as to that part, despite the parties’ disagreeing as to another aspect of the sentence. In the case of Manca, the defence and Crown both proposed a sentence of 9 months’ jail and the same terms of probation, but differed on the length of probation. The sentencing judge imposed a sentence of 10 months’ jail, 3 years of probation as requested by the Crown, and an additional term of probation not requested by either party.

The Court of Appeal held the sentencing judge had erred by “tinkering” with the joint submission of counsel as to the length of jail: “…a month difference between the perceived ‘bottom end’ of the range, and the joint submission, cannot reasonably be said to have rendered the proposed sentence ‘so unhinged from the circumstances of the offence and the offender that its acceptance would leave reasonable and informed persons … to believe that the proper functioning of the justice system had broken down’” (paras 36 and 38).

However, the Court of Appeal upheld both the length and terms of probation imposed by sentencing judge. Although the defence and Crown had proposed the same terms of probation, disagreeing only on the length, “at best, the parties shared a common view on appropriate probationary conditions, but standing alone, this does not amount to the equivalent of a joint submission…. [W]hen matters proceed by joint submission, it is incumbent upon counsel to make clear to the sentencing judge what falls within the scope of the agreement” (at para 47).

This case clarifies that a submission can be joint even if just in part, but cautions counsel to make the record very clear regarding what falls within the scope of the agreement.

Read further on CANLII, the website of the Canadian Legal Information Institute.

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