R. v. Nahanee, 2022 SCC 37

WHAT YOU NEED TO KNOW

-          The “public interest test” adopted in R. v. Anthony-Cook, 2016 SCC 43, which instructs judges not to depart from a joint sentencing submission unless the proposed sentence would bring the administration of justice into disrepute, does NOT apply to contested sentencing hearings.

-          In a contested sentencing hearing, sentencing judge must give notice to parties if they’d like to “jump” the Crown’s proposed sentence.

-          Failure to do so amounts to an error in principle. As with all sentence appeals, this error will only justify appellate intervention where it can be established the error had an impact on the sentence.

-          A sentencing judge that imposes a harsher sentence than the Crown’s position must provide reasons for doing so. Failure to do so may justify appellate intervention.

BACKGROUND
Mr. Nahanee pleaded guilty to two counts of sexual assault related to incidents with his nieces, aged 13 and 15. At the sentencing hearing, the Crown sought a global sentence of 4-6 years, while the defence sought a global sentence to 3 to 3.5 years. The sentencing judge imposed a global sentence of 8 years. Mr. Nahanee appealed his sentence on the basis that the sentencing judge failed to alert counsel that she planned on imposing a sentence in excess of the Crown’s position. The Court of Appeal dismissed his appeal.

Disposition – Appeal dismissed.

ANALYSIS

The “public interest test” adopted in R. v. Anthony-Cook, 2016 SCC 43, which instructs judges not to depart from a joint sentencing submission unless the proposed sentence would bring the administration of justice into disrepute, only applies to joint submissions. It does not apply to contested sentencing hearings. This is because the Anthony-Cook test is intended to protect the unique benefits of a joint submission: certainty and efficiency. Contested hearings are, by their very nature, characterized by lack of agreement and in turn, far less certainty as to the possible sentence.

If, however, the sentencing judge presiding over a contested sentencing hearing intends to impose a sentence harsher than the Crown’s position, they should notify the parties and give them an opportunity to make further submissions. A sentencing judge should let the parties know as soon as possible if they are concerned that the Crown’s proposed sentence is, or may be, too lenient and they are contemplating exceeding it. This does not require the sentencing judge to outline any particular issues or frailties of the Crown’s proposed sentence

Failure to provide this notice amounts to an error of principle. As with all sentence appeals, however, an error in principle will only justify appellate intervention where it appears from the judge’s decision that such an error had an impact on the sentence. In these circumstances, the appellant must demonstrate that there was information that they could have provided, if given the opportunity to do so, and it must appear to the appellate court that this information would have impacted the sentence. Appellate intervention may also be warranted where the sentencing judge failed to provide reasons, or provided unclear or insufficient reasons, for imposing a harsher sentence. Lastly, appellate intervention may also be justified if the sentencing judge relied on flawed or unsupportable reasoning for imposing the harsher sentence.

DISSENT (KARAKATSANIS & COTE JJ)

The dissent agrees that the Anthony-Cook “public interest test” should reserved only for joint submissions. They also agree that a sentencing judge considering a harsher sentence is required to notify the parties and invite submissions on the same. The dissent, however, disagrees with what the appropriate remedy should be when a judge fails to follow this procedure.

The majority concludes that the “remedy” is that the accused must bring a sentence appeal. The sentencing judge’s failure to notify the parties and invite submissions amounts to an error in principle. The accused, now appellant, must establish on appeal that this error impacted their sentence. They are only entitled to a remedy on appeal if such an impact is established.

The dissent, on the other hand, concludes that this error amounts to a breach of procedural fairness as it denies the parties adequate notice of the case to meet and the right to be heard. Failure to provide notice impacts the parties’ ability to make meaningful submissions which heightens the risk that the judge will impose a sentence without all of the relevant information needed to craft a fit sentence. Procedural fairness is an independent right and is an independent basis for reviewing judge’s decisions. An inquiry into procedural fairness is distinct from the inquiry into whether a sentence is unfit, or whether there has been an error in principle that impacted the sentence. Procedural fairness is concerned with the procedure used to arrive at the sentence rather than the sentence itself.

The failure to provide notice or inviting submissions amounts to a breach of procedural fairness. As a result, it is necessary to set aside the sentencing decision and conduct sentencing afresh in order to restore fairness and/or the appearance of fairness to the proceedings. The accused does not need to establish any impact on his sentence or actual prejudice. Where the Court of Appeal determined that a breach of procedural fairness has occurred, it must perform its own sentencing analysis without deference to the sentencing judge’s initial sentence.

 Read full decision here.

For more information on joint sentencing submissions and the “public interest test” check out Emond’s Sentencing: Principles and Practice, chapters 1-5, Volume 12 of the Criminal Law Series.