Sep 21, 2020

The Supreme Court of Canada has provided detailed guidance on how adjudicators should approach joint submissions. While the case deals with a criminal case (a manslaughter finding where the victim hit his head on the ground following a punch), it will likely have significant application to discipline cases as well. Past discipline cases have taken a similar approach to criminal cases when dealing with joint submissions: Rault v. Law Society of Saskatchewan, 2009 SKCA 81.

In R. v. Anthony Cook, 2016 SCC 43, the Court examined the reasons why joint submissions should usually be accepted, including that the defendant is giving up their right to a hearing and that both sides and the public often gain a significant benefit by having such agreements generally accepted. For example, witnesses are spared being put through a trial and both the “victim” and the defendant can benefit from the acknowledgement of responsibility and more quickly putting the blame part of the process behind them. The Court concluded that the most stringent of tests for rejecting a joint submission should be applied, namely, only where it would bring the administration of justice into disrepute or is otherwise not in the public interest. In particular, adjudicators should not analyze whether the joint submission is “unfit” in the circumstances.

The Court, in a bit of an unusual step, offered practical guidance to adjudicators who have concerns with a joint submission. One suggestion was to ask the parties about the circumstances of the agreement including any benefits obtained by the prosecution and any concessions offered by the defendant. These circumstances could include things like reluctant witnesses, evidence of uncertain admissibility and any undertakings offered by the defendant. The Court also suggested that if an adjudicator is seriously considering not accepting the joint submission, it should notify the parties not only to permit additional submissions, but also to enable the defendant the opportunity to withdraw from the agreement. It is not obvious whether this aspect of the Court’s advice would apply to professional misconduct proceedings.