Appeal court ruling on plea arrangements a ‘game changer'

Article originally appeared in: Advocate Daily
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Appeal court ruling on plea arrangements a ‘game changer'

The Alberta Court of Appeal has endorsed a plea deal negotiated by Calgary criminal lawyer Greg Dunn, sending a strong message that judges need to respect sentencing agreements.

“It absolutely changes the legal landscape,” says Dunn, principal of Dunn & Associates.

“They were very clear in their decision that joint submissions — when they’re brought before a trial judge or before a sentencing judge — are to be given enormous deference,” he tells AdvocateDaily.com.

“If we don't have deference afforded to counsel in bringing joint submissions before the court, then you undermine the purpose of joint submissions, which is certainty.”

The three-judge appeal panel overturned a sentence of two years less a day — reduced to 18 months for pre-trial custody and delay — imposed on Dunn’s 24-year-old client by Justice M. David Gates of the Alberta Court of Queen’s Bench after she pleaded guilty to conspiracy to commit robbery.

Gates rejected a sentence of six months less a day plus two years probation proposed by Dunn and the Crown, concluding that it was so low as to bring the administration of justice into disrepute.

But the three-judge high court panel restored the jointly proposed sentence, despite the Crown arguing against it on appeal and contrary to their own position taken at sentencing in front of Gates.

“Just because the joint submission is not the resolution that the sentencing judge would have agreed to does not mean that it would bring the administration of justice into disrepute,” the panel said. “There must be some error in principle underlying the joint submission before it becomes ’unhinged from the circumstances of the offence and the offender.’”

The criminal justice system is plagued with long wait times, Dunn says. Part of the problem has been that judges have historically had great latitude to reject plea deals, he adds.

“It created a culture of apprehension in cutting deals before trial because you never knew if the judge was going to go along,” he says.

The Supreme Court of Canada stemmed the tide, ruling in 2016 that a judge should accept a plea deal unless it is so unhinged from the circumstances of the offence and the offender that a reasonable person would believe the administration of justice had broken down, Dunn says.

“The underpinning policy was to encourage lawyers to do deals and to know that those deals would be accepted by the court,” he says.

But defence counsel have always been somewhat uncertain about how that Supreme Court decision would be interpreted in each respective jurisdiction, Dunn says. In Alberta, for instance, judges were still finding ways to override joint submissions, he says.

This appeal judgment is a “game changer,” possibly going further than the Supreme Court did in upholding the certainly of plea deals, Dunn says, adding that as a result, his client was freed from prison after serving four months — just past her statutory release date.

The appeal court’s six-month sentence spares the North American-raised woman from automatic deportation to her country of birth, Morocco, a consideration in plea negotiations, Dunn says. She is now eligible for an oral hearing at which she has a good chance to successfully argue against her deportation on humanitarian grounds, he adds.  

The robbery took place in November 2014 at a Bank of Montreal branch in Mission, near downtown Calgary, where the woman was a teller, Dunn says.

The woman, her boyfriend and two other young college students decided to rob the bank, Dunn says.

Her role was to provide inside information and assist on the day of the robbery, but she abandoned the plan and tried to convince her boyfriend to pull out, the court said.

The boyfriend and his two accomplices went ahead, arming themselves with handguns and robbing the bank of $12,000. They were quickly arrested, however, convicted and sentenced to 5.5 to 6 years' imprisonment.

Police found a note with the robbery plan in one of the conspirator’s cars, Dunn says. The Crown believed the note was connected to Dunn’s client but acknowledged it would be hard to prove, he adds.

“There were significant evidentiary frailties in the case against her,” he says. As such, the Crown gave a significant reduction of sentence, Dunn says.

The sentencing judge disagreed that the Crown would have substantial prosecutorial difficulties, concluding that the ultimate sentence should be in parity with those imposed on offenders committing similar offences.

But the Alberta Court of Appeal said it is inappropriate for the judge to first determine what sentence would have been imposed had there been a trial, and then compare it to the joint submission.

After having his client's original sentence restored, Dunn says, “The Court was very clear that it's not the role of the sentencing judge to second-guess the lawyers bringing in the plea deal."