The pros of hiring an attorney: sentence negotiation

An undeniable advantage to retain the services of an attorney is the possibility that he may negotiate with the prosecution in order to obtain a sentence that is reasonable and acceptable for the accused. Moreover, when such a negotiation leads to a joint submission on sentence, the judge must generally abide by the suggestion.

“When plea resolutions are “properly conducted [they] benefit not only the accused, but also victims, witnesses, counsel, and the administration of justice generally”^[1]

Here is a good example: Séguin c. R., 2021 QCCA 195.

The facts

The accused in this case pleaded guilty to 4 charges, namely driving under the influence, driving despite an interdiction to do so and not respecting conditions relative to alcohol consumption on two occasions. In fact, the accused in this case was a repeat offender; it was his seventh indictment for impaired driving.

On the sentencing hearing, the prosecution and the defense presented to the judge a joint submission on sentence to suggest a 16-month incarceration along with a 2 year probation for all charges. After deliberations, the sentencing judge decided to reject the joint submission and imposed a much more severe sentence of 51 month and 18 days incarceration.

The decision

The accused therefore appealed his sentence in front of Court of Appeal of Quebec, essentially criticizing the sentencing judge for rejecting the joint suggestion without providing sufficient explanation and for imposing an unreasonable sentence. According to the accused, the judge failed to respect the principle that sentences should be gradually increased and failed to give sufficient weight to mitigating factors.

At the end of the hearing, the bench of three judges of the Court of Appeal unanimously agreed with the accused and allowed the appeal. According to the Court, the trial judge could not reject the sentencing recommendation offered by the parties by assessing the fairness of the offer.

Since the Anthony-Cook decision rendered by the Supreme Court of Canada in 2016, it is now evident that a judge can only reject a common suggestion if the proposed sentence is likely to cause loss of public confidence in the justice system. Indeed, since this judgment, the judge who determines the sentence can no longer reject a joint suggestion of the parties simply because he considers that another sentence would be more appropriate or even if he considers that the sentence suggested is “clearly not indicated”.

In the present case, according to the Court of Appeal, there was no reason for rejecting the joint suggestion made by the parties. The objective of this agreement between the prosecution and the defense was to give the accused the opportunity to obtain treatment on his release from prison and thus promote his social reintegration. As the Court of Appeal pointed out, ” [TRANSLATED] a longer prison sentence, but without probation, would, in our opinion, serve no useful purpose in the circumstances of the case” and this suggested sentence is “[TRANSLATED] not likely to bring the administration of justice into disrepute”.

All in all, this Court of Appeal ruling is a shining example of the deference the judges must give to attorneys negotiating for a case. It reinforces the idea that lawyers should be trusted, because they are called upon to balance the interests of convicted persons and of society on a daily basis.