R. v. Lucas, 2021 NLCA 14

Chesley John Lucas (appellant) v. Her Majesty the Queen (respondent) (18/15) Indexed As: R. v. Lucas 2021 NLCA 14 6 C.A.N.L.R. 449 Court of Appeal of Newfoundland and Labrador Welsh, Hoegg and Goodridge JJ.A. March 9, 2021 Restriction on Publication: No person shall publish in any document or broadcast or transmit in any way evidence, submissions and/or instructions to the judge that form part of the sentencing hearings of Calvin Kenney and Chesley Lucas until such time as the jury for the trial of Paul Connolly or his matters have been concluded, with the exception of the convictions as registered and the sentence recommendation as put forth by counsel or sentence imposed.

Summary: Chesley Lucas pleaded guilty and was convicted of manslaughter, home invasion robbery, forcible confinement, arson, and breaches of court orders. A joint sentencing submission was proposed by the parties for a term of imprisonment of seven years and six months. The trial judge rejected the joint submission, gave Mr. Lucas an opportunity to withdraw his guilty plea, and imposed a sentence of twelve years and six months imprisonment. Mr. Lucas applied for leave to appeal the sentence, arguing that the trial judge erred in rejecting the joint sentencing submission. Held: Appeal dismissed.

Welsh J.A. (Hoegg and Goodridge JJ.A. concurring): Leave to appeal was granted following the conclusion that the issues raised in the appeal have an arguable basis (paragraphs 6-7). The trial judge did not err in rejecting the joint sentencing submission. He followed the correct procedure, taking time to consider his position, outlining his concerns, and giving counsel an opportunity to provide written and oral submissions in response. The judge gave extensive reasons for rejecting the joint submission, allowed counsel time to consider their position, and gave Mr.

Lucas the opportunity to withdraw his guilty plea (paragraphs 8-10).

The essential question is whether the proposed sentence “would bring the administration of justice into disrepute or is otherwise contrary to the public interest.” The test is whether the joint submission is “so markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of the criminal justice system”, or the joint submission would cause “an informed and reasonable public to lose confidence in the institution of the courts” (paragraphs 11-19).

The trial judge considered the range of sentence for the offences and the quid pro quo involved in a joint submission, including possible difficulties with witnesses and what Mr. Lucas might be giving up by pleading guilty (paragraphs 20-42). On balance, given the circumstances and rationale underpinning the joint submission, including the submissions of counsel regarding benefits to the Crown and concessions made by Mr. Lucas, the trial judge was satisfied that the joint submission should be rejected

(paragraphs 43-48). Cases cited: R. v. Hillier , 2016 NLCA 21 , 377 Nfld. & P.E.I.R. 121 R. v. Frampton , 2018 NLCA 23 , 2 C.A.N.L.R. 673 R. v. Anthony-Cook , 2016 SCC 43 , [2016] 2 S.C.R. 204 R. v. St. Cloud , 2015 SCC 27 , [2015] 2 S.C.R. 328 Statutes considered: Criminal Code , sections 675(1) (

b) and 606(1.1) Canada Evidence Act , R.S.C. 1985, c. C-5,

section 5 Canadian Charter of Rights and Freedoms ,

section 13 Counsel: Jason Edwards, for the appellant; Dana Sullivan, for the respondent. The appeal was heard on January 19, 2021 before Welsh, Hoegg and Goodridge JJ.A. The following judgment was filed on March 9, 2021 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A.: [ 1 ] Chesley Lucas pleaded guilty and was convicted of manslaughter, home invasion robbery, forcible confinement, arson, and breaches of court orders. Following the guilty pleas, counsel filed a joint sentencing submission for a term of imprisonment of seven years and six months.

The trial judge rejected the joint submission and, having given Mr. Lucas the opportunity to withdraw his guilty plea, imposed a term of imprisonment of twelve years and six months. Mr. Lucas applies for leave to appeal, and if granted, appeals against the sentence. BACKGROUND [ 2 ] An agreed statement of facts, filed and quoted in full in the trial judge’s comprehensive December 18, 2017 decision, was supplemented by additional facts agreed to by counsel at the sentencing hearing. In brief, Mr.

Lucas and two other men forcibly entered the home of Steven Miller at approximately 4:00 a.m. on July 30, 2016, with the intention of stealing drugs and money. They found Mr. Miller in bed and dragged him into the hallway. There, two of the men held Mr. Miller down while the third man repeatedly assaulted him. Another occupant of the house, Ms. Crickard, who could see what was happening through her slightly open door, said that the man who had been assaulting Mr. Miller came into her bedroom and pointed a gun at her. Eventually, Mr. Lucas and another of the men left in a van taking Mr. Miller with them.

There was a significant amount of blood, including around a safe that was located in the house. Although there was some discussion in the van about taking Mr. Miller to a hospital, what in fact happened was that Mr. Miller was ejected from the van and abandoned on the side of a road in Paradise, NL. A 911-emergency call had been made at about 5:00 a.m., apparently by one of the men in the van, requesting an ambulance. However, without a correct address, the ambulance was unable to locate Mr. Miller, who was found at about 8:16 a.m. having died as a result of blood loss.

The autopsy revealed many stab wounds, incised wounds and blunt force wounds to his head and upper body, including his chest. The trial judge described the circumstances surrounding the assault as “chilling” and displaying “a gangland like attack” (December 18, 2017 decision, at paragraphs 13 and 14). [ 3 ] When Mr. Lucas and the second man left in the van with Mr. Miller, the third man, using gasoline, set fire to Mr. Miller’s house. The van was later found, also burned. Ms.

Crickard, the only other occupant at the time, fled from the house and was found walking along a road by a police officer. [ 4 ] The joint submission proposed a total sentence of seven years and six months, as follows (December 18, 2017 decision): [3] ...

Manslaughter 7.5 years Robbery 5 years concurrent Arson 3 years concurrent Unlawful confinement 1 year concurrent. ISSUES [5] The issues in this appeal are: (1) whether leave to appeal should be granted; and (2) if granted, whether the trial judge erred in refusing to accept the joint sentencing submission by misapplying the public interesttest, and in particular, underemphasizing the quid pro quo considerations involved in a joint submission. ANALYSIS Leave to Appeal [6] Leave to appeal is required because this is an appeal by Mr. Lucas as to sentence only (section 675(1)(

b) of the Criminal Code). The test to be applied is whether the appeal is “frivolous in the sense of having no arguable basis or sufficient merit” (R. v. Hillier, 2016NLCA 21, 377 Nfld. & P.E.I.R. 121, at paragraph 7; R. v. Frampton, 2018 NLCA 23, 2 C.A.N.L.R. 673, at paragraph 18). [7] In this case, counsel for the Crown conceded that leave to appeal should be granted. I agree. The issues raised in the appealregarding rejection of the joint sentencing submission satisfy the above test.

Refusing a Joint Submission Procedural Issues [8] When a trial judge refuses to accept counsels’ joint sentencing submission, certain procedural requirements are engaged (R. v.Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, at paragraphs 49 to 60). In this case, the trial judge followed the approvedprocedure. First, the judge advised counsel that he needed time to review the case law that counsel had submitted, and to consider hisposition. At the next hearing, the judge outlined for counsel his concerns regarding the joint submission.

Counsel were then given theopportunity to provide both written and oral submissions to address the judge’s concerns. They also had the opportunity to provideadditional facts to supplement the Agreed Statement of Facts originally filed. [9] After considering counsels’ submissions, the trial judge provided extensive reasons for rejecting the joint submission (December18, 2017 decision). He again adjourned the matter to allow counsel time to determine how they wished to proceed.

This was consistentwith the requirements of section 606(1.1) of the Criminal Code, which provides: A court may accept a plea of guilty only if it is satisfied that (

a) the accused is making the plea voluntarily; (

b) the accused understands (

i) that the plea is an admission of the essential elements of the offence, (ii) the nature and consequences of the plea, and (iii) that the court is not bound by any agreement made between the accused and the prosecutor; and (

c) the facts support the charge. [10] Mr. Lucas informed the Court on January 22, 2018, that he would not apply to withdraw his guilty plea, and asked the Court toproceed with sentencing as expeditiously as possible. By decision dated January 26, 2018, the trial judge gave reasons for imposing asentence on Mr. Lucas of twelve years and six months imprisonment, which was reduced to account for pre-disposition custody. Rejection of the Joint Sentencing Submission - the Test [11] The test to be applied in assessing a joint sentencing submission is discussed in Anthony-Cook, at paragraphs 32 to 48.

Essentially, the question is whether the proposed sentence “would bring the administration of justice into disrepute or is otherwisecontrary to the public interest” (at paragraph 32).

Moldaver J., for the Court, explained: [33] In Druken [2006 NLCA 67, 261 Nfld. & P.E.I.R. 271], at para. 29, the court held that a joint submission will bring theadministration of justice into disrepute or be contrary to the public interest if, despite the public interest considerations that supportimposing it, it is so “markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that theywould view it as a break down in the proper functioning of the criminal justice system”. And, as stated by the same court in R. v.

B.O.2,2010 NLCA 19, at para. 56 , when assessing a joint submission, trial judges should “avoid rendering a decision that causes aninformed and reasonable public to lose confidence in the institution of the courts”. Moldaver J. went on to summarize:

[34] ... [Those statements] emphasize that a joint submission should not be rejected lightly, a conclusion with which I agree. Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. ... [ 12 ] Counsel for Mr. Lucas emphasized the use of the word “unhinged” in the above paragraph.

In context, I take that term to denote “separated” or “removed” or, as quoted above, “so markedly out of line”. It is clear that the threshold for rejecting a joint submission is high ( Anthony-Cook , at paragraph 44 ). [ 13 ] The Court in Anthony-Cook addressed considerations that would be relevant to assessing the public interest component of the analysis. It is to be expected that a jointly submitted sentence will likely be more lenient than might be expected after a trial. Both the offender and the Crown, and coincidentally the judicial system, benefit from a joint submission.

By pleading guilty, the accused person is able to minimize the stress and legal consequences of a trial. Further, “For many accused, maximizing certainty as to the outcome is crucial – and a joint submission, though not inviolable, offers considerable comfort in this regard” ( Anthony-Cook , at paragraph 36 ). What the accused relinquishes is the right to a trial and the related proceedings and rights. [ 14 ] There are benefits from the Crown’s perspective as well.

Conviction is guaranteed, removing uncertainty that may result from “an unwilling witness, a witness of dubious worth, or evidence that is potentially inadmissible” at trial ( Anthony-Cook , at paragraph 39 ). The accused may have information or evidence that would assist the Crown in another investigation or prosecution.

Certainty in resolving the case may be of particular benefit to victims or potential witnesses. [ 15 ] Further, as expressed by Moldaver J. in Anthony-Cook , at paragraph 40 , “To the extent that they avoid trials, joint submissions on sentence permit our justice system to function more efficiently”, by freeing up time, resources and expenses available for other matters. [ 16 ] Nonetheless, Moldaver J. cautioned: [43] At the same time, this test also recognizes that certainty of outcome is not “the ultimate goal of the sentencing process.

Certainty must yield where the harm caused by accepting the joint submission is beyond the value gained by promoting certainty of result” ( R. v. DeSousa , 2012 ONCA 254 , 109 O.R. (3d) 792 , per Doherty J.A., at para. 22). [ 17 ] By way of guidance to sentencing judges, Moldaver J. explained: [53] Third, when faced with a contentious joint submission, trial judges will undoubtedly want to know about the circumstances leading to the joint submission – and in particular, any benefits obtained by the Crown or concessions made by the accused.

The greater the benefits obtained by the Crown, and the more concessions made by the accused, the more likely it is that the trial judge should accept the joint submission, even though it may appear to be unduly lenient. ... [ 18 ] Finally, in Anthony-Cook , at paragraphs 46 to 48 , Moldaver J. drew a distinction between the public interest test that applies when considering a joint sentencing submission and the fitness test that applies to sentencing generally. In

summary: [48] Further, both the fitness test and the appellate “demonstrably unfit” test suffer from a similar flaw: they are designed for different contexts. As such, there is an appreciable risk that the approaches which apply to conventional sentencing hearings or sentencing appeals, will be conflated with the approach that must be adhered to on a joint submission. In conventional sentencing hearings, trial judges look at the circumstances of the offender and the offence, and the applicable sentencing principles.

They are not asked to consider the critical systemic benefits that flow from joint submissions, namely, the ability of the justice system to function fairly and efficiently. Similarly, appellate courts are not bound to consider these systemic benefits on a conventional sentencing appeal. The public interest test avoids these pitfalls. [ 19 ] While the public interest test engages elements that are not undertaken for purposes of a conventional sentencing, it does not follow that considerations relevant in a conventional sentencing have no place in assessing a joint submission.

In particular, depending on the circumstances, a frame of reference from which to conduct the assessment may be necessary in order to determine whether a joint submission is so “markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of the criminal justice system”, or the joint submission would cause “an informed and reasonable public to lose confidence in the institution of the courts” (paragraph 11, above).

For example, in this case, the trial judge reviewed case law to ascertain the sentences that the offences may have attracted in a conventional setting. That said, care must be taken with the manner in which such information is used when assessing a joint submission because the focus must remain on the public interest criteria. Application of the Public Interest Test [ 20 ] I begin by reiterating that the threshold for rejecting a joint sentencing submission is high. For the following reasons, the trial judge did not err in concluding that the threshold was cleared in this case. Mr.

Lucas submits that the trial judge erred by treating the joint submission as if it was a conventional sentencing. In particular, he points to the trial judge’s detailed consideration of appropriate ranges and a probable sentence that each charge may attract. A

summary of these is of assistance in reviewing the judge’s determinations regarding the public interest test. [ 21 ] Regarding the home invasion robbery, in comparison to five years imprisonment, concurrent, proposed in the joint submission, the judge concluded that, in the circumstances, the offence would “in the normal course attract a sentence close to 10 years” (December 18, 2017 decision, at paragraph 17). As part of the assessment, the trial judge referenced Mr. Lucas’ antecedents: [19] Mr. Lucas is 23 years of age and also has a criminal record.

As a youth, he has been found guilty of armed robbery and use of a firearm in committing robbery, assault with a weapon, breaking and entering a dwelling house, unlawfully possessing break in tools, disguised with intent, unauthorized possession of a prohibited weapon, mischief to property, 4 theft under charges, and one failure to

comply with a disposition. As an adult, Mr. Lucas has convictions for impaired driving, failure to attend court, assault and failure to comply with a disposition. A warrant of arrest was in effect for Mr. Lucas for failure to attend court when the present offences were committed. [ 22 ] Regarding the charge of arson, the judge concluded that the offence would attract a sentence of three years imprisonment, as proposed in the joint submission: [ 23 ] The arson offence in this case was a deliberate act of pouring gasoline in the living room area of the residence, knowing that Ms.

Crickard was in or near the residence, and it would appear being reckless as to whether others were present in or near the residence. The fire caused extensive damage to the residence. While neither [Mr. Lucas nor his co-accused, Mr. Kenny] has a previous conviction for arson, as noted above, each has a criminal record. This offence would attract a sentence of at least 3 years incarceration, in keeping with the precedents in this province. [23] Regarding the unlawful confinement of Mr. Miller before ejecting him from the van onto the side of the road, the trial judge concluded: [25] ...

For the unlawful confinement in the course of the present offences, [Mr. Lucas and Mr. Kenny], both of whom have records for violence, could expect a sentence within the range of 12 months, as proposed in the joint submission. [ 24 ] With respect to the charge of manslaughter, the trial judge described the serious nature of the events leading to Mr. Miller’s death: [28] ... The circumstances of this case can only be described as extremely serious. The young victim was safely in his home when three individuals, including [Mr. Lucas and Mr. Kenny], forced their way into his home at 4 a.m.

They entered the residence for the purpose of stealing drugs and money from the residence. They accosted the victim, beat him, and he suffered multiple incise and stab wounds to his body. He was dragged from the house, albeit with the initial intent to “save his life”, but was dumped on the side of the road where his body was discovered some four hours later. ... [ 25 ] The trial judge also considered Mr. Lucas’ moral blameworthiness when considering the manslaughter offence: [34] ... The facts and factors show a planned home invasion with an attempt to steal drugs.

The entire sequence of events shows an extremely high degree of moral blameworthiness on the part of [Mr. Lucas and Mr. Kenny]. This criminal activity was no accident, was planned and with the breaking into an occupied home of what they thought was a drug trafficker, violence was obviously anticipated. While there is no evidence the two intended to kill the occupants of the residence upon the forced entry, they used weapons, a gun, and a knife or knives ... . Their possession and use of weapons, both knives and a gun which was used to threaten Ms.

Crickard, suggests they were ready to use force to deal with any eventuality. The violence used against Mr. Miller was extreme ... . [T]he uncaring manner in which they left this seriously injured man on the side of the road without determining if he was to obtain medical assistance adds to the moral blameworthiness of the two.

The trial judge concluded: [38] To summarize, before any consideration of the joint submission criteria, for the offence of home invasion robbery I would expect the sentence to be imposed to be in excess of 8 years, for the arson at least 3 years, for the unlawful confinement 1 year, and for the manslaughter in excess of 8.5 years. [ 26 ] The above determinations provide a context within which the judge applied the public interest test in assessing whether the joint submission was so “markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of the criminal justice system”, or would result in “a decision that causes an informed and reasonable public to lose confidence in the institution of the courts” (paragraph 11, above). [ 27 ] Regarding the alleged benefits of the joint submission, the trial judge dismissed submissions made by Crown counsel regarding the agreed statement of facts: [36] ...

The Crown cannot in one breath state here is the agreed statement of facts, and with the same breath state the court must discount certain facts because of the unsavory nature of the person or persons providing the facts or the potential that one of the witnesses might not appear for trial. ... Secondly, in my view the Crown has taken the agreed statement of facts and placed an

interpretation on them not supported by those facts. ... The argument that the degree of violence used is unknown is also without foundation. The wounds sustained by Mr. Miller are set out in the agreed statement of facts. They are many and some are extremely intrusive. ... [ 28 ] Mr.

Lucas submitted that the joint sentence was within the general range of sentences for these offences, and that there were problems with the Crown’s case that made the sentence acceptable, given the quid pro quo that is engaged in a joint submission. [ 29 ] The trial judge began with counsels’ submissions regarding issues with the witnesses. Regarding Ms.

Crickard, seen to be the most important witness, the judge referenced the issues proffered by counsel: first, “whether she would show up at all to testify at trial”; and second, “what effect her perceived lack of cooperation with the police on certain issues would have on her credibility at trial” (December 18, 2017 decision, at paragraph 44). [ 30 ] The judge concluded that any concerns expressed by counsel that Ms. Crickard would fail to appear for a trial were “without foundation in law or fact” (December 18, 2017 decision, at paragraph 45). She was served with a subpoena for the preliminary inquiry

and there was no indication that she would not have attended. With respect to Ms. Crickard’s cooperation, the trial judge concluded: [47] Counsel have also related some concerns with respect to the lack of cooperation of Ms. Crickard with respect to supplying certainitems to the police on the night of this incident. Counsel further state that Ms. Crickard denied knowing anything of drug activity at theresidence where she stayed with the deceased and his brother. These are factors that can be explored on cross-examination and indeed, Iwould be surprised if they were not so explored.

They do, however, appear ancillary to the observations of Ms. Crickard [relevant tothese charges] on the night of the home invasion. … (Emphasis added.) [31] Further, the judge pointed out that it would not be problematic for Ms. Crickard if she gave evidence that may implicate her incriminal activity related to drug trafficking because that evidence could not be used against her in other proceedings (section 5 of theCanada Evidence Act, R.S.C. 1985, c. C-5, and

section 13 of the Canadian Charter of Rights and Freedoms). [32] In addition, Ms. Crickard had given a videotaped statement to the police. The trial judge noted: [48] ... If for some reason, at present unknown, Ms. Crickard testifies to something different at trial than what she said in her statement,the parties have the use of sections 9(1) and 9(2) of the Canada Evidence Act. In addition, because it was a videotaped statement thecase of R. v. U (F.J.), (SCC), [1995] 3 S.C.R. 764, can be used to seek admission of the statement itself as evidence inthe matter.

Thus, while there may be some issues with the evidence of Ms. Crickard, based on the evidence available to me at this stage,these issues are of a minor nature, and are not unlike issues with any civilian witness who may have some concerns with their ownliability or with other ancillary matters. [33] Next, the trial judge determined that Kyle Morgan, who had pleaded guilty as an accessory after the fact, was also an importantwitness. In

summary: [49] ... Mr. Morgan’s evidence puts the three alleged perpetrators of this offence together before the events, gives evidence of theplanning, and provides evidence of the three leaving in a van to go to 1625 Conception Bay South Highway to steal drugs and money. He also provides evidence of picking the three up after the event, with Mr. Kenny and Mr. Connolly being injured. He also providesevidence of both he and Mr. Lucas burning items stolen from the residence of 1625 Conception Bay Highway after the event.

Mr.Morgan gave two statements to the police, the second of which can be corroborated by evidence from Ms. Crickard and independentevidence of injuries to Mr. Kenny and Mr. Connolly, DNA evidence of Mr. Kenny’s blood in Mr. Morgan’s residence, his car being seenat the site of the burning of the items taken from the residence, and the burning of the van used in the robbery. In addition, it must beremembered that Mr.

Morgan signed an agreed statement of facts which formed the basis of his guilty plea to the charge of accessoryafter the fact to manslaughter, which included much of what has been noted above with respect to his second police statement. AVetrovec (R. v. Vetrovec, (SCC), [1982] 1S.C.R. 811) warning would have to be given in any trial of the matter of Mr.Kenny and Mr. Lucas in which Mr. Morgan testifies. However, as many aspects of Mr. Morgan’s testimony can be corroborated byindependent evidence, problems with his credibility on those points would be largely diminished.

There is no evidence presented tosuggest that Mr. Morgan would not testify to the matters contained in his second statement and in the agreed statement of facts in hisown sentencing hearing. [34] Regarding Mr. Myler, an acquaintance who was not a co-accused, the trial judge summarized the corroborative evidence hecould give, and concluded: [50] ... As with the previous witness, Mr. Morgan, there is nothing presently before me to suggest that Mr. Myler would not repeatwhat he told the police in August of 2016 with respect to his conversations with Mr. Lucas.

And, as with other witnesses the provisionsof the Canada Evidence Act, in particular sections 9(1) and 9(2) can be utilized if problems arise, along with the common law respectingadverse witnesses. [35] Regarding another co-accused, Mr. Connolly, who is being tried separately, the trial judge concluded: [51] ... I agree that the various contradictory statements, his past extensive criminal record and the fact he was a co-accused in thismatter would probably cause the Crown serious difficulties in obtaining any reliable evidence from this witness.

It is also noted that heexpressed concern to the police that he not be labelled as a “rat”. [36] Having completed the review of these witnesses, the judge concluded: [52] ... The potential evidence to be provided by three of the four witnesses noted above – that of [Ms. Crickard, Mr. Morgan and Mr.Myler], are not, on the information provided at this hearing, problematic. The only issue is the general one, and that is that each of themmay be reluctant witnesses in the sense each knows either the deceased, or others whom they implicate in the offences before the court.

Reluctant witnesses do not make bad witnesses, or unreliable witnesses. They may be, as stated, reluctant witnesses. Even that of courseis unknown at this stage, so to propose that such witnesses play a prominent role in the decision to agree to a joint submission for asentence, which I conclude is extremely low, lacks objective foundation. ... [37] The trial judge then dismissed as irrelevant, in assessing the public interest test, the offenders’ apparent attempts to provideassistance to Mr. Miller by ejecting him from the van and calling for an ambulance without providing a correct address.

The judgeexplained: [53] ... The position is that the offenders have in essence given up their right to argue this issue in return for the agreed upon sentenceof 7.5 years. Unfortunately for counsel, there is no merit to that argument.

Section 224 of the Criminal Code is determinative of thatissue. It states: Where a person, by

an act or omission, does any thing that results in the death of a human being, he causes the death of that humanbeing notwithstanding that death from that cause might have been prevented by resorting to proper means.

[ 38 ] While it is true that Mr. Lucas did not have the opportunity to make the argument at a trial, the judge concluded that the argument was without merit, with the result that Mr. Lucas, in fact, gave up nothing. [ 39 ] In addition, counsel submitted at trial that Mr. Lucas relinquished the opportunity to argue that his right to be tried within a reasonable time, guaranteed by

section 11(

b) of the Canadian Charter of Rights and Freedoms , may be infringed by delay in the proceedings. The trial judge dismissed this submission as “purely speculative” (December 18, 2017 decision, at paragraph 54). [ 40 ] On appeal, Mr. Lucas’ counsel submits that the trial judge erred by relying, without an evidentiary basis, on his knowledge of the court’s docket. This submission is not persuasive. The trial judge gave reasons for why he rejected the speculative position put forward by Crown counsel.

He did not rely directly on the court’s probable docket, but rather, on the manner in which the charges against the other co-accused had proceeded and how Mr. Lucas’ matter would likely have proceeded. In the circumstances, the judge did not err in taking this approach. [ 41 ] Finally, the trial judge addressed the question of the quid pro quo inherent in a joint submission. The judge began by referencing the benefits to the Crown that apply generally in the case of a joint submission.

While he accepted that these would apply here, the judge explained why other factors weighed in the public interest balance: [56] ... Beyond those general attributions, in my view the justifications of the joint submission ... [are] with respect to Mr. Lucas weak. I say this because it must first be remembered that the major charge in this case is not murder but manslaughter. The proof of a manslaughter charge is quite different from that of first degree murder, which was the original charge being faced by the two offenders.

It needs repeating that any unlawful act that results in the death of a victim is culpable homicide manslaughter. There is no requirement of an intent to kill or to cause bodily harm that the offender knows is likely to cause death, and is reckless whether death ensues or not as there is for murder. ... [ 42 ] The judge acknowledged that the manslaughter case against Mr. Lucas was not as strong as that against Mr. Kenny, and that, if Mr. Lucas went to trial, the Crown would need to rely on the evidence of the witnesses, discussed above, to prove Mr. Lucas’ guilt beyond a reasonable doubt.

The judge assessed the resulting quid pro quo , which he considered to be the “principal justification for the joint submission”, to have “limited merit with respect to Mr. Lucas” (December 18, 2017 decision, at paragraph 59). [ 43 ] The trial judge then asked whether the joint submission would bring the administration of justice into disrepute or be otherwise contrary to the public interest.

In particular, would acceptance of the joint submission “lead reasonable and informed persons, aware of the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down?”, or “cause the reasonable and informed member of the public to lose confidence in the institution of the courts?” (December 18, 2017 decision, at paragraph 60). [ 44 ] In undertaking this assessment, the trial judge referred to the decision in R. v. St.

Cloud , 2015 SCC 27 , [2015] 2 S.C.R. 328 , for purposes of determining what is meant by a reasonable person. In short, it is “a thoughtful person, not one who is prone to emotional reactions”, but who “is familiar with the basics of the rule of law in our country and with the fundamental values of our criminal law” ( St. Cloud , at paragraphs 80 and 79 , respectively). The trial judge concluded that a reasonable person would understand the basic purpose and principles underpinning sentencing, including denunciation, deterrence, and rehabilitation.

The reasonable person would understand proportionality in sentencing; that is, a sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender. Understanding these principles would not require knowledge of the relevant provisions in the Criminal Code . [ 45 ] The trial judge concluded: [62] ...

The informed public, being aware of all the circumstances and issues in this case, and in particular being aware of the precedents in this and other jurisdictions for sentencing for manslaughter and home invasion robbery would have serious concerns that the sentence proposed, even for the manslaughter alone, is exceedingly low because of the nature of the offence in question.

Add to this the unlawful confinement and in particular the arson, which I believe the informed public would consider to be a very aggravating circumstance, and the 7.5 years for all of these offences would in my view, be considered by the informed member of the public to be so low that this public would, if such a sentence were imposed, lose confidence in the institution of the courts. The manner in which Mr.

Miller was left on the side of the road is, in my view, also such an aggravating circumstance that it adds to the concerns the public would have for the impact the joint submission would have on their perception of the courts. [ 46 ] The judge found that the concerns of the informed public would be increased in light of Mr.

Lucas’ significant criminal record, which included crimes of violence and began when he was a youth, and the fact that a warrant of arrest was outstanding for him when he committed these offences. [ 47 ] Finally, the judge reiterated that, while certainty of result is an important consideration in the criminal justice system, “certainty should not be attained at too great a price”, and, as stated in Anthony-Cook , certainty “must yield where the harm caused by accepting the joint submission is beyond the value gained by promoting certainty of result” (December 18, 2017 decision, at paragraph 65). [ 48 ] In the result, the trial judge was satisfied, on balance, that, applying the Anthony-Cook test, the joint sentencing submission must be rejected.

The judge considered the circumstances and rationale underpinning the joint submission, including the submissions of counsel regarding benefits to the Crown and concessions made by Mr. Lucas. It has not been demonstrated and there is no basis on which to find that the trial judge erred.

SUMMARY AND DISPOSITION [ 49 ] In

summary, the trial judge gave clear and cogent reasons for rejecting the joint submission. He applied the analysis framed in Anthony-Cook and concluded that the sentence was so “markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of the criminal justice system”, and that the sentence “would cause an informed and reasonable public to lose confidence in the institution of the courts”. In addition, the judge followed the appropriate procedure, ultimately providing Mr. Lucas with the opportunity to withdraw his guilty plea.

[ 50 ] Having applied the appropriate legal principles, the trial judge did not err in rejecting the joint sentencing submission. [ 51 ] Accordingly, I would dismiss the appeal. Appeal dismissed.