R. v. Nahanee 2022 SCC 37 - Case Summary

The Supreme Court of Canada revisits R. v. Anthony-Cook, in the context of non-joint recommendation sentencing. Is a sentencing judge required to tell counsel if they are going beyond the range proposed?

Who

• Nahanee is charged with sexually assaulting two of his nieces, both minors at the time.

• After “extensive resolution discussions” between his lawyer and the Crown, Nahanee pleads guilty to both sexual assaults.

What

• The Crown asks the sentencing judge to impose 4-6 years jail total. Nahanee’s lawyer asks for 3-3.5 years jail.

• The sentencing judge disagrees with both lawyers and imposes a sentence of 8 years jail. The decision is made without the sentencing judge alerting the lawyers, or giving them further opportunity to make submissions.

Where

• The sentencing is heard in the Provincial Court of British Columbia (BCPC).

• Nahanee appeals the 8 year sentence to the Court of Appeal for British Columbia (BCCA). A unanimous court dismisses the appeal, on the basis that judges are not required to tell counsel if they are going beyond a recommended sentence range.

• Nahanee further appeals to the Supreme Court of Canada (SCC). The Court also dismisses the appeal.

Why

• Joint recommendations are hearings where the Crown and counsel for the accused, both pitch the same sentence to the judge.

  • Joint recommendations involve special rules, which the SCC laid out in R. v. Anthony-Cook, 2016 SCC 43.

  • This includes a judge not departing from the joint submissions, unless the sentence would “bring the administration of justice into disrepute” or is “otherwise contrary to the public interest” (Nahanee at para 1).

  • This is known as the public interest test:

    • “Rejection [of a joint submission] 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.” (Anthony Cook at para 34)

• The rules are different in non-joint recommendation sentencings, where a judge can more easily give a sentence that is different than what the lawyers suggest. That said…

  • If a sentencing judge intends to give a harsher sentence than what the Crown has proposed, they SHOULD notify the lawyers and allow them to make further submissions.

• Failure to let the lawyers know in advance, may result in an appeal if any of the following occurs (at para 4):

(i) the appellant establishes that there was information they or the Crown could have provided to the sentencing judge that would have impacted the sentence;

(ii) the sentencing judge failed to provide adequate reasons for imposing the harsher sentence, thereby foreclosing meaningful appellate review; or

(iii) the sentencing judge provided erroneous or flawed reasons for imposing the harsher sentence.

The Gist

• Contested sentencing hearings are not subject to the same rules as joint recommendations.

  • This means a judge can go beyond a proposed sentence in a contested hearing, even if the proposed sentence passes the “public interest test”.

• If a sentencing judge intends to give a harsher sentence than the Crown recommends, they should let the parties know as soon as possible (para 44).

  • That said, there is no requirement for a judge to give notice or to allow further submissions from the lawyers.

  • Appeals will only be possibly allowed where “where it appears from the trial judge’s decision that such an error had an impact on the sentence”" (para 52 & 59):

    • i. If the failure to provide notice and/or further submissions impacts the sentence

    • ii. If the sentencing judge failed to provide reasons, or provided unclear or insufficient reasons, for imposing the harsher sentence

    • iii. If the sentencing judge provided erroneous reasons for imposing the harsher sentence

• Joint recommendations are where every aspect of a sentence imposed are by agreement.

  • “To the extent that the parties may agree to most, but not all, aspects of the sentence — be it the length or type of the sentence, or conditions, terms, or ancillary orders attached to it — the submission will not constitute a joint submission. The public interest test does not apply to bits and pieces of a sentence upon which the parties are in agreement; it applies across the board, or not at all.” (Nahanee at para 27)