R v Nahanee 2022 SCC 37
Appeared with Rebecca McConchie as an Intervenor for the Trial Lawyers Association of British Columbia.
Fact Summary: the Appellant plead guilty to two counts of sexual assault. The Appellant and the Crown made sentencing submissions, which were not joint submissions. The Crown sought a 4-6 year global sentence. The Appellant sought a 3-3.5 year global sentence. There was no guilty plea in exchange for joint submissions on sentence. The sentencing judge did not agree with the sentencing submissions, and imposed a sentence of eight years imprisonment. The sentencing judge did not alert counsel that she was intending to exceed the Crown’s proposed Sentence.
The overwhelming majority of provincial appellate courts have found that sentencing judges should provide counsel with notice and the opportunity to respond when they intend to exceed the Crown’s sentencing position; where there is a divide, it is on the appropriate remedy if notice is not provided.
The BC Court of Appeal stands alone in finding that it is not an error for a judge to exceed the Crown’s position without notice and an opportunity to respond, but even this court has stated that that procedure is “undoubtedly preferable”: R v R.R.B. BCCA 224 at [22].
The Court of Appeal dismissed the sentence appeal.
TLABC took the position on the appellant’s second question before the court:
- That the failure of a sentencing judge to alert counsel that they intend to exceed the sentencing ceiling proposed by Crown results in procedural unfairness requiring appellate intervention.
- It may also lead to the appearance of unfairness, another reason for the Court to hold that notice to the accused and an opportunity to respond is mandatory.
At the hearing, the Crown essentially conceded that notice should be given, so the hearing focused on the remedy, something that we addressed. TLABC’s submissions dealt squarely with the issue before the Court-namely that the only remedy for a breach of procedural fairness or the appearance of unfairness is a fresh sentencing analysis.