The Court ordered a pre-sentence report, and the matter was adjourned for that to occur and for the submissions of counsel. Prior to the pleas being formally entered, the court was asked to canvass certain provisions of the Criminal Code with Fisher. The judge seized of the matter warned him that he would not be bound by the position of Crown and defence.
With this in mind, the case raises very interesting issues relating to the law of joint submissions.
In Canadian criminal law, a longstanding tradition has been that agreements between the Crown and Defence are to be followed by judges, unless there is good reason to depart from the joint position. However, until recently there was no hard and fast rule about this. In late 2016, the Supreme Court of Canada released its decision in R. v. Anthony-Cook, a decision addressing joint submissions. The Court ruled that judges should not depart from a joint submission unless the administration of justice would be brought into disrepute or the proposed sentence would be contrary to the public interest.
The comments of the court in the Fisher case are interesting. The canvassing of certain sections of the Criminal Code, coupled with the fact that the judge gave the caution he did about following joint submissions suggests that there may be a joint position on sentence in the works. And if there is, this case would represent the first high-profile case in which a joint submission and its effect on the reputation of the administration of justice and the public interest is at the forefront.
I have previously written about whether police should be held to a higher standard when it comes to offences against the administration of justice. And certainly it is logical to do so. There is good reason to impose a higher burden on the police to act appropriately within the confines of the justice system, as they are responsible for its administration. As we can see from what occurred with Fisher, the police are often in a position of power and control over other individuals, which position is ripe for abuse.
But in a case such as this the public interest is not just concerned with the accountability of police. The decisions made by Fisher in relation to how he dealt with these vulnerable witnesses have potentially compromised evidence in other cases. And even where vulnerable witnesses were not involved, his credibility as an officer is seriously undermined by his conduct and any ongoing investigations he was conducting, as well as any cases pending in the court system could be completely compromised by this conduct.
The effect on the administration of justice ripples outward here, tainting evidence throughout various cases and giving rise to grounds of appeal in various criminal cases thought to be closed.
Whatever sentence is proposed in this case — either jointly by Crown and defence or individual positions taken by them — the judge will have to seriously consider this ripple effect on other cases caused by Fisher. This is a circumstance where the sentence has to be sufficiently severe to send a strong deterrent message to others in positions of trust and authority, and to denounce the conduct of this officer and the impact it has had. I doubt the minimum sentence on the exploitation charge will suffice or satisfy the court. The breach of trust charge carries a five year maximum sentence.
The ranges for these offences vary wildly, based on the conduct and based on the individual and their circumstances. This too will make the job of the sentencing judge more difficult. But this is a case that is less about identifying the appropriate range, as it is ensuring that whatever sentence is imposed, it adequately protects the reputation of the administration of justice. And I believe it is fair to say that that reputation has been significantly harmed by the conduct of Fisher towards his victims.
If there is a joint submission in this case, there is no doubt that the judge will have to consider the impact that sentence has on the administration of justice, and if the sentence is too light to denounce and deter the type of conduct and its impact in this case, a departure may be appropriate.
This is a case where the limits of the Anthony-Cook decision and its comments about the binding nature of joint submissions will be put to the test. It will be both interesting and informing to learn the judge’s sentence and the reasons for it.
