- Resolution discussions between Crown and defence — often called plea bargaining — are a normal, expected part of Ontario criminal practice.
- Common forms include charge bargaining (pleading to fewer or lesser charges), fact bargaining (agreeing on the facts read into the record), and a joint sentencing submission to the judge.
- The judge must independently confirm any guilty plea is voluntary, informed, and has a factual basis — a plea deal doesn't bypass this.
- Under R v. Anthony-Cook, 2016 SCC 43, a judge should not depart from a joint sentencing submission unless it would bring the administration of justice into disrepute or otherwise not be in the public interest — a notably higher bar than ordinary sentencing review.
- This “public interest” test gives joint submissions real weight — but the judge always retains the final word.
- A plea deal is a negotiated outcome, not a guarantee — understanding what you're actually agreeing to, and why, matters before you accept one.
The Short Answer
Plea bargaining — Crown and defence negotiating a resolution short of trial — is a normal and expected part of Ontario criminal practice. It can take several forms, but the most consequential is a joint sentencing submission, which carries real weight with the court once agreed to.
What Resolution Discussions Actually Look Like
The overwhelming majority of criminal cases in Ontario resolve without a trial. Resolution discussions between Crown and defence counsel are a routine part of the process, not something unusual or improper. These conversations can happen at various stages, and can address the charges themselves, the facts to be relied on, or the sentence to be jointly proposed to the judge.
Charge Bargaining vs. Fact Bargaining
| Type | What It Involves |
|---|---|
| Charge bargaining | Crown reduces or withdraws some charges in exchange for a guilty plea to others |
| Fact bargaining | Both sides agree on the specific facts to be read into the record at the plea |
| Joint submission | Crown and defence agree on and jointly present a proposed sentence to the judge |
Joint Sentencing Submissions
A joint submission is the most consequential form of resolution — Crown and defence agree on a specific sentencing position and present it together to the judge. This gives both sides real certainty about the likely outcome, in exchange for the accused pleading guilty and the Crown foregoing the uncertainty and cost of trial.
R v. Anthony-Cook: The Public Interest Test
In R v. Anthony-Cook, 2016 SCC 43, the Supreme Court of Canada resolved a long-standing split among lower courts and adopted the “public interest” test: a judge should not depart from a joint sentencing submission unless the proposed sentence would bring the administration of justice into disrepute or would otherwise not be in the public interest. This is a markedly higher bar than the ordinary “fitness” test applied to sentencing generally — the question isn't whether the judge would have arrived at a different number, but whether accepting the joint position would cause reasonable, informed members of the public to view the outcome as a genuine breakdown of the justice system.
Crown and defence jointly propose a sentence the judge personally considers somewhat lenient, but not unreasonable given the specific facts, the accused's circumstances, and the strength of the case. Under Anthony-Cook, the judge accepts the joint submission — personal disagreement with the specific number isn't enough to justify departing from it.
The Judge's Independent Role
Even with a negotiated resolution in place, the judge doesn't simply rubber-stamp the deal. Before accepting a guilty plea, the judge must independently confirm it is voluntary, that the accused understands the nature and consequences of the plea (including that the judge isn't strictly bound by any agreement outside the joint submission framework), and that there is a genuine factual basis supporting it.
Why Cases Resolve Instead of Going to Trial
- Evidentiary considerations — genuine strengths or weaknesses on either side become clearer as the case develops
- Certainty — both sides avoid the unpredictability and cost of a full trial
- Early resolution — can be treated as a mitigating factor at sentencing
- Resource considerations — trials require significant time and resources from both the Crown and the court system
Common Mistakes
The judge still independently confirms your plea is voluntary, informed, and has a factual basis, regardless of any negotiated resolution.
A joint submission carries real weight precisely because judges need an unusually strong reason to depart from it — know what you're actually agreeing to.
Facts agreed to as part of a resolution can have lasting effects — make sure you understand exactly what's being admitted.
Some of the most favourable resolution outcomes are available earlier in the process — don't assume you can negotiate just as effectively on the eve of trial.
Weighing a plea deal or considering your options? Call our Toronto team at 416-274-2222 for a free consultation.
Frequently Asked Questions
Yes. Resolution discussions between Crown and defence counsel are a normal, well-established part of the Ontario criminal justice system — the vast majority of criminal cases resolve this way rather than proceeding to trial.
A joint submission is an agreed sentencing position that Crown and defence present together to the judge, typically negotiated as part of resolving the case. It reflects what both sides consider an appropriate sentence, informed by the specific facts and circumstances.
A judge retains discretion to depart from a joint submission, but under a notably high bar set by the Supreme Court in R v. Anthony-Cook: only where the proposed sentence would bring the administration of justice into disrepute or would otherwise not be in the public interest — a much higher threshold than simply disagreeing with the number.
Outside the joint submission context, a judge assesses whether a sentence is "fit" using the ordinary sentencing principles and factors. For a joint submission specifically, the Supreme Court held judges should not depart from it merely because they would have imposed a different sentence — only if accepting it would genuinely undermine confidence in the justice system.
No. Regardless of any negotiated resolution, the judge must independently confirm your guilty plea is voluntary, that you understand what you're pleading to and its consequences, and that there is a genuine factual basis for it. A plea deal doesn't replace this judicial oversight.
Reasons vary — genuine evidentiary weaknesses in the case, the time and resources a trial would require, the accused's lack of a record, early acceptance of responsibility, or a resolution that still achieves an appropriate outcome without the uncertainty and cost of a trial for either side.
This is ultimately your decision, but it should be an informed one — understand exactly what you're pleading to, what the joint submission proposes, and how it compares to your realistic prospects and risks at trial before deciding.
Before the guilty plea is formally entered and accepted by the court, you generally retain the right to change your position. Once entered and accepted, withdrawing a guilty plea is possible only in limited circumstances and becomes significantly more difficult.