R v Nahanee: Notices and Further Submissions in Contested Sentencing Hearings
Content Warning: This article mentions instances of sexual violence that may be triggering for some readers.
R v Nahanee, 2022 SCC 37 [Nahanee] is a case which addressed two key issues related to contested sentencing hearings following a guilty plea. The first issue was whether sentencing judges could depart from sentencing ranges proposed by the Crown in contested sentencing hearings. The second issue was whether an appellate court could intervene if a sentencing judge imposed a sentence which exceeded the sentencing range proposed by the Crown in a contested sentencing hearing without notifying the parties and providing an opportunity for further submissions.
After going through the facts and background and the procedural history, this case comment will explore the reasons of both the majority and dissent of the Supreme Court of Canada (“SCC”), then critique the majority’s decision and analyze its implications moving forward.
Facts and Background
When Mr. Nahanee was 19 years old, E.N., his 13-year-old niece, moved in with him and his parents because her own mother was struggling with addiction (Nahanee, para 7). Shortly after, Mr. Nahanee began sexually assaulting E.N. repeatedly (Nahanee, para 7). The assaults were so numerous that E.N. lost track of how many times Mr. Nahanee assaulted her (Nahanee, para 8). The final assault on E.N. occurred when she was 21 years old (Nahanee, para 11).
The impact of Mr. Nahanee’s actions on E.N.’s life was severe, to say the least. Consequences that E.N. faced included, but were not limited to, being physically and emotionally exhausted from losing sleep while defending herself against Mr. Nahanee’s attacks, struggling with self-esteem, and feeling that she had nowhere else to go (Nahanee, para 9).
Five days after his final assault on E.N., Mr. Nahanee sexually assaulted S.R., his 15-year-old niece, who was staying with her grandparents for a night (Nahanee, para 11). Mr. Nahanee’s actions have also had devastating effects on S.R., including suffering from anxiety and suicidal thoughts (Nahanee, para 13).
At the sentencing hearing (R v K.A.N., 2020 BCPC 0041), the Crown sought a global sentence of four to six years, while Mr. Nahanee sought a global sentence of three to three and a half years (Nahanee, para 15). After considering various aggravating and mitigating factors, the sentencing judge sentenced Mr. Nahanee to a global sentence of eight years, a sentence longer than the Crown’s proposed sentencing range, without giving notice to the parties or an opportunity to make further submissions (Nahanee, paras 16-20). Mr. Nahanee appealed the sentencing judge’s decision to the British Columbia Court of Appeal (“BCCA”).
The BCCA unanimously dismissed Mr. Nahanee’s appeal (R v Nahanee, 2021 BCCA 13). Among considering other grounds of appeal, the BCCA disagreed with Mr. Nahanee’s position that the sentencing judge “erred by failing to alert counsel that she planned to impose a sentence in excess of that sought by Crown counsel,” holding that this failure was not a “reversible error” unless Mr. Nahanee could show that the sentencing judge’s omission prejudiced him (Nahanee, paras 21 and 22). Mr. Nahanee appealed the BCCA’s decision to the SCC.
The SCC’s Majority Decision
In writing for the 7-2 majority, Justice Moldaver identified three issues that Mr. Nahanee’s appeal raised:
A. Does the Anthony-Cook framework for departure from joint submissions following a guilty plea apply to contested sentencing hearings following a guilty plea?
B. Are sentencing judges required to give notice to the parties and provide an opportunity for further submissions if they plan to impose a harsher sentence than the Crown proposes?
C. Does Mr. Nahanee’s sentence warrant intervention? (Nahanee, para 24)
The Anthony-Cook Test and Contested Sentencing Hearings
Mr. Nahanee asked the SCC to extend the “public interest” test from R v Anthony-Cook, 2016 SCC 43 [Anthony-Cook], which protects proposed specific sentences agreed upon by the Crown and the defence in exchange for an accused’s guilty plea, to contested sentencing hearings following a guilty plea. This test “instructs judges not to depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute, or is otherwise contrary to the public interest” (Nahanee, para 1). Mr. Nahanee submitted that the benefits of applying the test to joint submissions exist to the same degree when the test is applied to contested sentencing hearings (Nahanee, para 28). The SCC majority rejected Mr. Nahanee’s request, reasoning that contested sentencing hearings following a guilty plea do not offer the same degree of benefits as joint submissions, namely, certainty and efficiency (Nahanee, para 30). When applied to joint submissions, the Anthony-Cook test offers certainty by encouraging and protecting specific agreements between parties, which, in turn, improves the efficiency of the justice system (Nahanee, paras 30 and 33). In contrast, contested sentencing hearings are “characterized by a lack of agreement on a specific sentence” and “[require] the parties to prepare for and provide comprehensive submissions” (Nahanee, paras 31 and 33). If the Anthony-Cook test applies to both joint submissions and contested sentencing hearings, parties may increasingly “choose to gamble” by proceeding to a contested sentencing hearing to seek a lower sentence, which would “[place] an even greater strain on a justice system that is already overburdened” (Nahanee, para 38).
Notice, Opportunity for Further Submissions, and Appellate Intervention
Mr. Nahanee also argued that a judge’s failure to provide notice and the opportunity for further submission is a breach of procedural fairness that justifies a new hearing in all circumstances, even if the accused had no additional information they could have presented to the judge (Nahanee, para 51). The SCC majority rejected applying the idea of procedural fairness in this case, holding that “the applicable route of appeal [was] the error in principle model” (Nahanee, para 52). Under the error in principle model, a judge’s failure to provide notice and the opportunity to further submissions, while an error, will only warrant appellate intervention “where it appears from the trial judge’s decision that such an error had an impact on the sentence” (R v Lacasse, 2015 SCC 64 at para 44).
The SCC majority explained that even in instances where a judge is considering a harsher sentence than what the Crown proposed and fails to provide notice and an opportunity for further submissions, an accused is given a fair hearing if the accused has been made aware of the Crown’s case and has received the opportunity to make submissions at the initial sentencing hearing (Nahanee, para 55). If any “informational deficiency” existed at the sentencing hearing, the SCC majority stated that an appellate court could remedy the situation by sentencing the accused without deference to the sentencing judge (Nahanee, paras 57 and 61).
Mr. Nahanee’s Sentence
The SCC majority held that Mr. Nahanee’s sentence did not warrant intervention. Despite the sentencing judge failing to provide notice and an opportunity for further submissions, the SCC majority found that Mr. Nahanee did not demonstrate that he had any additional information that would have impacted his sentence (Nahanee, para 63). For the SCC majority, the sentencing judge provided sufficient reasons for why she exceeded the Crown range, and those reasons were not erroneous “when read as a whole” (Nahanee, para 67). As Mr. Nahanee’s sentence did not warrant appellate intervention, the SCC majority dismissed his appeal.
In writing for the dissent, Justice Karakatsanis agreed with the majority that the Anthony-Cook test should not apply to contested sentencing hearings (Nahanee, para 71). However, the dissent disagreed on the choice of remedy when a judge considering a harsher sentence than the Crown’s proposal fails to notify the parties and invite further submissions (Nahanee, para 71).
For the dissent, the majority should not have downplayed the significance of procedural fairness; procedural fairness is an “independent basis” which allows courts to “[review] decisions affecting an individual’s rights and interests, and providing a remedy if appropriate” (Nahanee, para 72). Procedural fairness includes the right to be heard, which is closely tied to the right to notice of the case to meet (Nahanee, paras 77 and 78). In the context of sentencing, if a judge intends to impose a harsher sentence than the sentencing ranges proposed by the parties, having notice of the case to meet and an opportunity to be heard is critical (Nahanee, para 81).
It follows that failing to either give notice or invite further submissions when a judge is considering a harsher sentence is a breach of procedural fairness. The dissent disagreed with the majority’s assumption that “the parties will have already provided comprehensive submissions” without receiving notice or an opportunity for further submissions (Nahanee, para 84). It is unrealistic to expect parties to provide all potentially relevant information in their initial submissions, as a party will tailor their arguments to the opposing party’s positions (Nahanee, para 85).
In regards to remedy, because it is not possible to determine whether further submissions could have impacted the sentence, the dissent opined that if a sentencing judge fails to give notice of their intention to impose a harsher sentence and an opportunity for further submissions, it will be necessary to conduct a new sentencing hearing (Nahanee, para 101). For the dissent, “it is not necessary for the accused to demonstrate that the breach of procedural fairness caused actual prejudice” (Nahanee, para 102). Therefore, the dissent would have allowed Mr. Nahanee’s appeal and remitted the matter back to the BCCA to determine a fit sentence (Nahanee, para 110).
As explained above, this case addressed two main issues: whether courts should apply the Anthony-Cook test to contested sentencing hearings and the scope of appellate intervention when a sentencing judge fails to provide notice and an opportunity for further submissions when considering a harsher sentence than the Crown’s proposal. On the first issue, both the majority and the dissent agreed that courts should only apply the Anthony-Cook test to joint submissions. The SCC majority gave valid reasons for this decision, including that the justice system would become even more overwhelmed if courts began to apply the Anthony-Cook test to contested sentencing submissions.
However, if the parties’ proposed sentencing ranges are not going to be automatically protected by the Anthony-Cook test in contested sentencing hearings, then it is only fair that sentencing judges give parties a chance to address their concerns if judges are looking to depart from the proposed ranges. If sentencing judges do not provide this opportunity, then they will be, at least partly, making decisions on their own without hearing from the parties, contrary to how our adversarial system functions.
It is difficult to see how the SCC could have claimed that an accused “will have put their best foot forward” even when “the accused will not have been informed about the sentencing judge’s concerns” (Nahanee, para 55). It is simply common sense that a party cannot address a judge’s concerns if they do not know what those concerns are. Furthermore, as the dissent discussed, expecting parties to make submissions on every single potential point or issue is unrealistic. Yet, with the majority’s decision, parties may have to if they wish to address any of the judge’s concerns that may never be revealed to them if the judge does not provide notice. This kind of scenario would be impractical and work against the SCC majority’s (and the dissent’s) concern for ensuring efficiency in our justice system.
Overall, the majority’s decision to apply the error in principle model instead of emphasizing procedural fairness is troubling. It was not enough for the SCC majority to conclude that any errors in principle committed by the sentencing judge that impact sentencing, including informational deficiencies, could be corrected at the appellate level. In its reasons, the dissent cited R v Blake-Samuels, 2021 ONCA 77 [Blake-Samuels], where the Ontario Court of Appeal stated:
It is not appropriate to deny procedural fairness during the sentencing process with the expectation that any error can be cured on appeal. It is contrary to the commitment to access to justice, contrary to natural justice, and contrary to a commitment to judicial economy to permit sentencing judges to go beyond counsel submissions and force offenders to rely on the appeal process to ensure fairness. Fairness should be afforded at all steps (Blake-Samuels, para 33).
If the SCC majority had ensured procedural fairness over applying the error in principle model, it would have not only contributed to improving the efficiency of the justice system but also promoted access to justice in sentencing hearings where accused persons have so much at stake.
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