Most criminal cases in Ontario do not end in a trial. A large share are resolved earlier, often through conversations between defence counsel and the Crown about whether, and how, a case might be settled short of a full trial. These conversations are generally called resolution discussions, and they play a significant role in how the criminal justice system actually operates day to day. This guide explains what resolution discussions generally involve, how joint submissions on sentence work, and what the Supreme Court of Canada has said about when a judge can depart from one. It is general information only and not legal advice about a specific case.
It is worth being clear from the outset that a resolution discussion is not something that happens automatically, and no one, including an accused person, is ever required to resolve a case. The purpose of these discussions is to give the Crown and defence an opportunity to explore whether a resolution makes sense, based on the evidence and the circumstances, not to pressure anyone into an outcome.
What Are Resolution Discussions?
A resolution discussion, sometimes called plea negotiation, is generally a conversation between defence counsel and the Crown about whether a case can be resolved without going to trial, and if so, on what terms. These discussions typically take into account the strength of the evidence, including disclosure that has already been reviewed, the circumstances of the offence, and the circumstances of the accused person. They can happen at various points in a case, but usually become most substantive once disclosure has been reviewed by the defence.
Resolution discussions can lead to a range of outcomes, including a guilty plea to the original charge, a guilty plea to a reduced or different charge, an agreed set of facts, a jointly proposed sentence, or, in some cases, the Crown agreeing to withdraw or stay a charge as part of the overall resolution. Not every discussion results in an agreement, and either side can decide not to proceed with a proposed resolution.
Not the Same as a Judicial Pretrial
It is important not to confuse resolution discussions with a judicial pretrial conference. Resolution discussions generally happen directly between defence counsel and the Crown, without a judge present, and are confidential negotiations between the two parties. A judicial pretrial, by contrast, involves a judge and is generally used to narrow issues, discuss the anticipated length of a trial, and explore whether a resolution might be possible, sometimes with the judge providing a general, non-binding view. The two processes often overlap in practice, since issues raised at a judicial pretrial can prompt further resolution discussions between counsel, but they are conceptually distinct.
What Can Be Discussed
Resolution discussions can cover a wide range of issues depending on the case, including:
- Whether the Crown would accept a guilty plea to a lesser or different charge
- What facts the parties would agree to for the purposes of a guilty plea
- What sentence, or range of sentence, the parties might jointly propose to the court
- Whether certain charges might be withdrawn as part of an overall resolution
- Ancillary matters, such as restitution, probation terms, or other conditions
These conversations are generally without prejudice, meaning that things discussed during negotiations are not later used against a party if the discussions do not result in an agreement. This encourages open and candid conversations between counsel.
Joint Submissions on Sentence
When the Crown and defence reach an agreement on how a case should be resolved, they will often present the sentencing judge with a joint submission: a single, agreed-upon sentence, or a narrow agreed range, that both sides are jointly recommending. Joint submissions are common in Ontario criminal courts and serve an important practical function, since they allow cases to be resolved with a reasonable degree of certainty for everyone involved, including the accused person.
A joint submission is not automatically binding on the sentencing judge. The judge retains the authority to impose a different sentence, but Canadian law places real limits on when a judge should actually depart from what the parties have jointly proposed, discussed in the next section.
R. v. Anthony-Cook and the Public Interest Test
The leading Canadian authority on joint submissions is the Supreme Court of Canada's decision in R. v. Anthony-Cook, 2016 SCC 43. Before that decision, different appellate courts across Canada had used different tests for when a judge could reject a joint submission, creating inconsistency in how confidently parties could rely on a negotiated resolution. In Anthony-Cook, the Supreme Court unanimously adopted a single, national test, generally described as the public interest test.
Under this test, a sentencing judge should not depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute, or would otherwise not be in the public interest. The Court was clear that this is a high threshold: a judge should not reject a joint submission simply because they might have imposed a somewhat different sentence if arguing the matter from scratch. Rejection is meant to be reserved for situations where informed members of the public would view the proposed sentence as a genuine breakdown in the proper functioning of the justice system.
Why the Public Interest Test Matters
This test matters because it gives real weight and predictability to resolution discussions. If judges could freely depart from joint submissions whenever they personally disagreed, it would undermine the value of these negotiations and make it harder for the Crown and defence to reach efficient resolutions, since neither side could be confident the outcome they had negotiated would actually be followed. The public interest test strikes a balance: it preserves judicial discretion for genuinely problematic joint submissions, while giving the parties confidence that a properly negotiated resolution will generally be respected by the court.
This is also part of why a lawyer's advice matters before agreeing to a joint submission. Since joint submissions carry significant weight once presented to the court, an accused person should understand, with the benefit of legal advice, both the terms being proposed and the practical reality that the court will only depart from the agreement in unusual circumstances.
Because a judge will rarely depart from a properly negotiated joint submission, it is important to fully understand and agree with the proposed terms before it is presented to the court. Discuss any concerns with your lawyer before, not after, a joint submission is put forward.
The Accused's Role in the Decision
While defence counsel conducts resolution discussions with the Crown, the ultimate decision about whether to accept a proposed resolution, including a guilty plea and any joint submission on sentence, belongs to the accused person, not the lawyer. A lawyer's role is to explain the proposed terms, the strength of the case, and the likely alternatives, including the risks of proceeding to trial, so the accused can make an informed decision. No one should feel pressured to accept a resolution they do not understand or do not agree with.
No Obligation to Resolve a Case
There is no obligation to engage in resolution discussions, and no obligation to accept a proposed resolution if one is offered. An accused person always retains the right to have the matter proceed to a trial, where the Crown must prove the case to the criminal standard. Resolution discussions are simply one avenue available alongside that right, and pursuing them does not waive it unless and until an actual agreement is reached and acted upon.
When Resolution Discussions Happen
Resolution discussions can begin at almost any point in a case, but they typically become more meaningful once disclosure has been reviewed and the strength of the evidence can be properly assessed. They often continue, and can intensify, in the period leading up to a judicial pretrial or a scheduled trial date, since both sides generally have an incentive to resolve genuinely appropriate cases before committing the time and resources a trial requires. There is no fixed point in a case by which resolution discussions must happen or conclude.
Frequently Asked Questions
Do I have to agree to a resolution discussed by my lawyer and the Crown?
No. The decision to accept or reject any proposed resolution, including a guilty plea or joint submission, belongs to the accused person, not the lawyer.
What is a joint submission on sentence?
It is a sentence, or narrow range, that the Crown and defence jointly recommend to the court as part of a negotiated resolution, generally in connection with a guilty plea.
Can a judge reject a joint submission?
Yes, but only rarely. Following R. v. Anthony-Cook, a judge should depart from a joint submission only where it would bring the administration of justice into disrepute or would otherwise not be in the public interest, which is a high threshold.
Are resolution discussions the same as a judicial pretrial?
No. Resolution discussions happen directly between the Crown and defence, without a judge. A judicial pretrial involves a judge and serves a somewhat different, though related, purpose.
Is anything said during resolution discussions used against me later?
Resolution discussions are generally treated as without-prejudice negotiations, meaning positions taken during them are generally not used against a party if no agreement is reached. A lawyer can explain how this applies to a specific situation.
Do resolution discussions mean I am pleading guilty?
No. Engaging in resolution discussions does not mean an accused person has agreed to plead guilty. It is simply a conversation to explore whether a resolution is possible, and any outcome still requires the accused person's own agreement.