Open Sentencing vs Joint Submissions: What Every Accused Person Should Know

Two Paths to Sentencing

After a finding of guilt in a criminal case — whether by guilty plea or conviction at trial — the court must determine the appropriate sentence. In Ontario, there are two main ways this happens: through a joint submission or through open sentencing.

Understanding the difference between these two approaches is essential for anyone facing criminal charges. The choice between them often arises during plea negotiations and can significantly affect the outcome of your case.

What Is a Joint Submission?

A joint submission is a sentencing recommendation that the Crown and defence present together to the judge. Both sides have agreed on what the sentence should be, and they present that agreement as a unified position.

For example, in a case involving impaired driving, the Crown and defence might jointly submit that the appropriate sentence is the minimum fine plus a twelve-month probation order. Or in an assault case, they might jointly submit a suspended sentence with eighteen months of probation and specific conditions.

The key feature of a joint submission is that both the Crown and defence stand before the judge and recommend the same outcome. The judge then decides whether to accept it.

The Legal Test: R v Anthony-Cook

The Supreme Court of Canada’s 2016 decision in R v Anthony-Cook established the legal test that judges must apply when considering whether to accept or reject a joint submission. The test is whether the proposed sentence would “bring the administration of justice into disrepute” or be “contrary to the public interest.”

This is a deliberately high bar. The Supreme Court recognized that joint submissions play a vital role in the criminal justice system and should not be lightly rejected. The court should not substitute its own view of the “fit” sentence for the joint recommendation of experienced counsel who have negotiated a resolution with full knowledge of the facts.

A judge can only reject a joint submission if accepting it would cause a reasonable, informed member of the public to lose confidence in the justice system. In practice, this means joint submissions are rejected only in exceptional circumstances — where the proposed sentence is so disconnected from the gravity of the offence that it would shock the conscience.

Why Joint Submissions Exist

Joint submissions serve several important purposes in the criminal justice system:

Encouraging guilty pleas. The certainty of a known outcome encourages accused persons to accept responsibility through guilty pleas, which resolves cases efficiently and spares complainants and witnesses the ordeal of testifying at trial.

Reducing court backlog. Every case resolved by joint submission is a case that does not require a contested sentencing hearing, saving court time and judicial resources. Given the ongoing pressures on Ontario courts and the timelines established by R v Jordan, efficient resolution is a systemic priority.

Acknowledging negotiated compromise. In most joint submissions, both sides have made concessions. The Crown may have withdrawn certain charges or agreed to a lower sentence than they would have sought at open sentencing. The accused has given up the right to trial and accepted responsibility. The joint submission reflects this negotiated balance.

Providing certainty. For the accused, a joint submission provides a degree of certainty that open sentencing does not. You know, within very narrow margins, what the outcome will be. This allows you to make an informed decision about whether to plead guilty.

What Is Open Sentencing?

Open sentencing occurs when the Crown and defence each argue for a different sentence, and the judge decides between them — or imposes a sentence somewhere in the range between the two positions.

In an open sentencing, the Crown presents aggravating factors and argues for a particular sentence. The defence presents mitigating factors and argues for a different, typically more lenient sentence. The judge weighs everything and exercises discretion.

When Open Sentencing Occurs

Open sentencing happens in several scenarios:

After a trial conviction. When the accused is found guilty at trial, there has been no plea negotiation and no joint submission. Sentencing is open, and both sides argue their positions independently. The Crown is not constrained by any concessions made during pre-trial discussions.

When negotiations break down. Sometimes the Crown and defence cannot agree on a joint submission during Crown pre-trial conferences or plea negotiations. The accused may still choose to plead guilty — perhaps because the evidence is overwhelming — but without an agreement on sentence. In this scenario, the guilty plea proceeds with open sentencing.

When positions are too far apart. If the Crown is seeking a penitentiary sentence and the defence believes a conditional sentence is appropriate, the gap may be too large for a joint submission. Both sides present their best arguments and let the judge decide.

Comparing the Two Approaches

Certainty vs Advocacy

The fundamental trade-off is between certainty and advocacy. A joint submission gives you near-certainty about the outcome but requires you to accept a sentence that may be higher than what you could achieve through open sentencing if the judge agrees with the defence. Open sentencing gives your lawyer the freedom to argue for the most favourable outcome possible but carries the risk that the judge will side more closely with the Crown.

The Risk Calculus

Consider a straightforward example. In a theft under $5,000 case involving a first-time offender, the Crown offers a joint submission of a conditional discharge with twelve months of probation. At open sentencing, the defence might argue for an absolute discharge (no probation), while the Crown might seek a conditional discharge with eighteen months of probation and a restitution order.

The question becomes: is the potential benefit of an absolute discharge worth the risk that the judge might impose something harsher than the joint submission offered? This is the kind of calculus that experienced defence counsel navigates daily.

Judicial Discretion

At open sentencing, the judge has broad discretion. They are not bound by either party’s position. While the judge will typically impose a sentence within the range argued by the parties, they are not required to do so. In rare cases, a judge may impose a sentence that is more severe than what the Crown requested.

With a joint submission, the judge’s discretion is constrained by the Anthony-Cook test. The practical effect is that the judge will almost always accept the joint submission.

When to Pursue a Joint Submission

Strong Cases for Joint Submissions

Joint submissions are most advantageous when:

• The offer is favourable. If the Crown’s joint position is at or near the lower end of the sentencing range, the certainty of a joint submission outweighs the marginal possibility of a slightly better result at open sentencing.
• The accused has significant mitigating factors. A first-time offender with strong community ties, employment, and family support may receive a joint submission that reflects those factors — a discharge, a suspended sentence, or a minimal fine — which might be more difficult to achieve at open sentencing before a judge who focuses on denunciation and deterrence.
• The Crown is withdrawing charges. Often a joint submission comes as part of a package: the accused pleads guilty to one charge, and the Crown withdraws the rest. The value of the joint submission includes not just the agreed sentence but the withdrawal of additional charges.
• There are mandatory minimum sentences in play. For offences with mandatory minimums, a joint submission at the minimum ensures the accused receives the lowest possible sentence. There is no advantage to open sentencing when the Crown is already agreeing to the minimum.

When Joint Submissions May Not Be Ideal

• When the defence position is significantly better than the Crown’s offer. If the defence believes a much more lenient sentence is achievable, open sentencing may be worth the risk.
• When the accused wants to contest the facts. A joint submission typically involves an agreed statement of facts. If the accused disputes key facts that affect sentencing, open sentencing with a contested facts hearing (a Gardiner hearing) may be necessary.

When Open Sentencing Is Appropriate

After a Trial

The most common context for open sentencing is after a trial conviction. Because there has been no negotiated plea, there is no joint submission. Both sides prepare sentencing submissions, and the defence has the opportunity to present the strongest possible case for leniency.

After a trial conviction, the defence will present:

• A pre-sentence report (if requested)
• Character reference letters
• Evidence of employment, education, and community involvement
• Evidence of rehabilitation efforts (counselling, treatment, community service)
• Medical or psychological reports, if relevant
• Submissions on the applicable sentencing range based on case law

The Crown will present:

• A victim impact statement (if available)
• The accused’s criminal record (if any)
• Aggravating factors (violence, breach of trust, vulnerability of the victim)
• Submissions on the applicable sentencing range

When Positions Are Far Apart

If the Crown is seeking 18 months in custody and the defence believes a conditional sentence (served in the community) is appropriate, a joint submission in the middle may not be possible because both sides believe the appropriate sentence falls in fundamentally different categories. Open sentencing allows the judge to hear full arguments from both sides and make an independent determination.

Gladue Principles

For Indigenous offenders, the sentencing analysis includes additional considerations under section 718.2(e) of the Criminal Code and the principles established in R v Gladue and R v Ipeelee. These principles require the sentencing judge to consider the unique systemic and background factors that may have contributed to the offender’s involvement in the criminal justice system and to consider all reasonable alternatives to imprisonment.

Gladue principles apply at both open sentencing and in the context of joint submissions. An Indigenous offender’s Gladue factors should be reflected in any joint submission, and defence counsel should ensure that a Gladue report or Gladue submissions are prepared.

At open sentencing, Gladue principles may support arguments for alternatives to custody — conditional sentences, suspended sentences, healing lodges, or other culturally appropriate dispositions — that might not be offered in a joint submission.

The Role of Defence Counsel

Whether your case proceeds by joint submission or open sentencing, the quality of your legal representation matters enormously. In joint submission negotiations, your lawyer’s ability to identify and present mitigating factors, challenge the Crown’s aggravating factors, and negotiate effectively determines the terms of the agreement.

At open sentencing, your lawyer’s courtroom advocacy — the ability to present a compelling sentencing brief, call appropriate witnesses, and make persuasive oral submissions — directly affects the sentence you receive.

Understanding what happens after a conviction is important for making informed decisions at every stage of the process.

Practical Examples

Example 1: DUI — Joint Submission

An accused is charged with impaired driving (first offence). The Crown offers a joint submission: the minimum $1,000 fine, a twelve-month driving prohibition, and a twelve-month probation order with conditions including completion of the Back on Track program. The accused accepts, knowing the sentence is at the minimum end of the range.

Example 2: Assault Causing Bodily Harm — Open Sentencing

An accused is convicted at trial of assault causing bodily harm. The Crown seeks 90 days in custody. The defence argues for a suspended sentence with probation, citing the accused’s lack of criminal record, steady employment, and steps taken toward anger management counselling. The judge imposes a suspended sentence with 18 months of probation and 50 hours of community service.

Example 3: Drug Trafficking — Joint Submission with Charge Withdrawal

An accused is charged with trafficking in cocaine and possession of proceeds of crime. After negotiations, the Crown offers a joint submission: the accused pleads guilty to simple possession of cocaine (a lesser charge), the Crown withdraws the trafficking and proceeds charges, and the joint submission is for a conditional discharge with probation. The accused accepts, avoiding a criminal record.

Contact Mor Fisher LLP

Whether your case is heading toward a joint submission or open sentencing, the criminal defence lawyers at Mor Fisher LLP will ensure you are fully informed about your options and vigorously represented at every stage.

Call us at 705-721-6642 or contact us online for a free consultation. We serve clients across Barrie, Toronto, and Central Ontario.