In R. v. Sidhu, 2022 ABCA 66, February 28, 2022, the accused was convicted, after trial, of the offence of criminal harassment. A period of nine months of incarceration, followed by three years of probation was imposed. The accused appealed from sentence, arguing that the trial judge erred in rejecting a joint submission.
The appeal was dismissed. The Alberta Court of Appeal concluded that a joint submission had not been presented and affirmed the sentence imposed.
The Court of Appeal held that there “are four essential components of an Anthony-Cook joint submission” (at paragraphs 32 to 35):
First, there must be a guilty plea. Anthony-Cook joint submission cannot describe the sentencing process that follows a conviction entered at trial even if both the offender and the Crown agree to recommend the identical sentence.
Second, the guilty plea must be the product of a bargain between the Crown and the accused. If the accused enters a guilty plea without any commitment from the Crown to do something in return for a guilty plea, there is no Anthony-Cook joint submission.
Third, the bargain of which a guilty plea is a component consists of another fundamental feature. The Crown must promise to recommend to the sentencer a specific sentence that is acceptable to the offender in return for the offender’s promise to plead guilty to a designated offence and relieve the Crown of the burden of calling evidence to prove its case.
Fourth, the Crown and the offender must agree on an identical sentence, or at the very least, one that differs only with respect to ancillary matters.
The Court concluded that “[w]hat we have is nothing more than sentencing submissions that suggest a similar sentence, whether as a result of discussion or by coincidence, following a conviction entered at trial” (at paragraph 41).
However, the Court of Appeal also concluded that the sentencing judge “should have informed the offender and the Crown that she had doubts about the fitness of the proposed sentence and was considering incarceration and offered to accept additional submissions” (at paragraph 46).
The Sentence Imposed:
The Court of Appeal concluded that “a sentence of not less than three-years incarceration” should have been imposed, but surprisingly, decided to affirm the sentence imposed (at paragraphs 79 and 80):
We are of the view that a sentence of not less than three-years incarceration would be a fit sentence for a crime of this duration and sophistication that caused the victim great harm. Criminal harassment is a major crime – a ten-year-maximum sentence – and those who commit it should expect to be the recipients of harsh sentences. Denunciation and deterrence are transcendent objectives in Mr. Sidhu’s case.
We agree with Judge Cochard that “[w]omen in … [the victim’s] position … should not have to live their lives looking over their shoulder”.