DiscoverLegally Speaking with Michael MulliganJoint sentencing submissions, prosecutorial immunity, and absolute privilege
Joint sentencing submissions, prosecutorial immunity, and absolute privilege

Joint sentencing submissions, prosecutorial immunity, and absolute privilege

Update: 2021-05-06


This week on Legally Speaking with Michael Mulligan:

Many criminal cases are resolved by way of joint sentencing submissions by Crown and defence counsel. 

This means that the accused person is agreeing to plead guilty and both lawyers have agreed on what the appropriate sentence should be. 

The Supreme Court of Canada has held that, in these circumstances, judges are not permitted to impose a sentence different than what is proposed unless the proposed sentence was “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.” A high threshold indeed.

The BC Court of Appeal recently allowed an appeal from the decision of a judge who refused to implement a joint submission.

One of the reasons that judges are not simply permitted to substitute their judgment for that of the Crown and defence is that the lawyers involved often had a much better understanding of the circumstance and issues which underly a proposed resolution. 

Because of the importance of an open and transparent court process, judges are not ordinarily provided with all of the evidence, reports, and witness statements that counsel would have access to. Judges need to make their decisions based on evidence and submission presented in open court so that it’s clear what is being considered. 

In addition, if judges were permitted to routinely depart from joint submission, fewer cases would resolve, and more unnecessary trials would result. 

Where a judge concludes that the high threshold for not imposing a joint submission has been met, they are required to provide “clear and cogent reasons” for doing so. Failing that, or if the reasons are not sufficient, the Court of Appeal may, as in the case discussed, allow a sentence appeal and impose the sentence that was agreed to. 

Also on the show, a new Supreme Court of Canada case is discussed concerning prosecutorial immunity. 

This case involved Toronto police officers suing Crown Counsel for how they conducted a prosecution. 

The original case involved the arrest of two men for armed robbery and unlawful confinement. The men who were arrested testified that police officers had strip-searched and beaten them into providing confessions. One of the men had a broken rib. 

The police officers involved alleged that Crown Counsel had mishandled the case because they believed the evidence of the accused men and did not call the police officers to testify at trial. 

The Supreme Court of Canada concluded that the police were not able to sue Crown Counsel for decisions such as this because of prosecutorial immunity which is intended to prevent civil claims like this so that Crown Counsel aren’t concerned about the possibility of civil liability when making decisions about a case. 

Finally, on the show, a case involving a defamation claim arising from inquiries made in the course of an ICBC claim is discussed. 

The claim was dismissed because of the concept of “absolute privilege” which precludes defamation claims for statements made in court, in pleadings, or in the course of duties relating to pursuing a client’s interest during the conduct of a case.

Follow this link for a transcript of the show and links to the cases discussed.  



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Joint sentencing submissions, prosecutorial immunity, and absolute privilege

Joint sentencing submissions, prosecutorial immunity, and absolute privilege

Michael Mulligan