Showing Deference to the Bargain: Nahanee v The Queen, and Why the Anthony-Cook Protections for Joint Submissions on Sentencing Should Be Expanded
Trent Erickson, 3L, Volume 80 Senior Editor
In the upcoming appeal of Kerry Alexander Nahanee v Her Majesty the Queen, SCC Docket 39599 (Nahanee), the Supreme Court of Canada will decide the judicial test for departing from sentencing submissions from the Crown and defence when extensive plea resolution discussions are undertaken. This appeal offers a welcome opportunity for the Court to expand the sentencing protections offered by R v Anthony-Cook, 2016 SCC 43 (CanLII) (Anthony-Cook). Given the lack of any relevant differences between joint and non-joint but still bargained submissions, the Supreme Court would do well to expand the Anthony-Cook test to all cases where the parties extensively bargain on sentencing, with the ultimate goal of promoting judicial efficiency.
The Test and Procedure as Established in Anthony-Cook
To understand Nahanee, the best place to begin is with the Supreme Court’s 2016 decision in Anthony-Cook. The issue in that case was how much deference trial judges should show to joint submissions on sentencing from the Crown and defence counsel in a criminal trial.
Joint submissions on sentencing are the product of a bargaining process wherein the Crown and defence counsel agree to ask the judge for the same sentence in exchange for a plea of guilty from the accused. In Anthony-Cook, the Court took notice of the benefits of joint submissions for the accused, the Crown, witnesses, and the justice system as a whole (Anthony-Cook at para 35):
The accused benefits from the increased certainty a joint submission creates as to his or her sentence. Further, joint submission will generally seek a more lenient sentence than the Crown might have sought had the case gone to trial or a contested sentencing hearing (Anthony-Cook at para 36).
The Crown benefits from joint submissions because the guilty plea may allow the Crown to avoid an acquittal in cases suffering from flaws like unwilling or uncredible witnesses or inadmissible evidence. The Crown may also use a joint sentence as an incentive to offer an accused if they testify in another trial or provide information in an investigation (Anthony-Cook at para 39).
Witnesses, some of whom may be traumatized, will benefit by being spared from having to testify in a trial (Anthony-Cook at para 39).
The justice system as a whole benefits from the time and resources that are saved when a criminal matter is resolved without trial or a contested sentencing hearing (Anthony-Cook at para 40).
Given all these benefits, the Court called discussions between Crown and defence to reach joint sentencing submissions “essential” for the criminal justice system (Anthony-Cook, para 1). However, for joint submissions to be a frequently used method of resolving cases, the parties must have a high degree of confidence that their submission will be accepted by the sentencing judge. In particular, an accused will be especially wary of pleading guilty if there is a chance that the main element at the Crown’s end of the bargain (a more certain, often more lenient sentence) may be ignored at sentencing. This militates in favour of trial judges showing deference to joint submissions.
Based on these considerations, Moldaver J, for a unanimous court, adopted a strict “public interest test” for when trial judges may depart from a joint submission. Trial judges cannot depart from the joint submissions “unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest” (Anthony-Cook at para 32).
Anthony-Cook also established a procedure for trial judges who intend to depart from a joint submission. First, judges must inform counsel during the sentencing hearing that they are considering rejecting the joint submission, and counsel must be given an opportunity to make submissions to address the judge’s concerns. Second, judges must provide an explanation for why the joint submission is unacceptable within the public interest test (Anthony-Cook at para 49-60).
Nahanee – The Facts
In 2019, Kerry Alexander Nahanee pleaded guilty to two counts of sexual assault against two of his nieces who were minors at the time of the assaults (R v K.A.N., 2020 BCPC 41 (CanLII) (K.A.N.) at para 2). Mr. Nahanee pleaded guilty following “extensive resolution discussions” with the Crown, which included discussions of how lengthy a sentence the Crown would seek (R v N, 2021 BCCA 13 (CanLII) at para 2). The Crown sought a global sentence of four to six years in jail while the defence sought three to three and a half years in jail (K.A.N. at para 6-7). The trial judge, Smith J, ultimately handed down a global sentence of eight years (K.A.N. at para 108). Smith J did not alert counsel in advance to her intention of imposing a sentence greater than the one sought by the Crown.
Mr. Nahanee appealed his sentencing decision to the British Columbia Court of Appeal on the ground that the trial judge failed to alert counsel that she was planning to impose a sentence above that sought by the Crown. Willcock JA upheld the lower court’s sentence. He relied on the Court of Appeal’s 2013 decision in R v B (R.R.), 2013 BCCA 224 (CanLII) (B (R.R.)), which held that there is no requirement for a judge to advise counsel that he or she is considering imposing a sentence outside the range proposed by counsel, even if it may be preferable for judges to do so (B (R.R.) at paras 22-25).
Mr. Nahanee applied for leave to appeal to the Supreme Court of Canada. The Court granted leave on July 8, 2021.
Nahanee – The Arguments
When Moldaver J wrote Anthony-Cook, he anticipated that his reasoning could apply beyond the context of a single joint submissions, to situations where the Crown and defence agree to a range of acceptable sentences. In a footnote, Moldaver J explicitly limited Anthony-Cook’s application to joint sentencing, while leaving the law open to future development:
As indicated, these reasons do not address sentencing flowing from plea agreements in which the parties are not in full agreement as to the appropriate sentence. In other instances, the Crown and accused may negotiate sentencing positions that reflect partial agreement or an agreed upon range. Such arrangements may involve a comparable quid pro quo. In such circumstances, it may be that similar considerations would apply where a trial judge is, for instance, inclined to exceed the ceiling proposed by the Crown, but we leave that question for another day (Anthony-Cook fn 3).
Mr. Nahanee, in his Memorandum of Argument, argues that “this is that day” (Nahanee v The Queen, Memorandum of Argument of the Applicant at para 1). He argues that the test and procedure from Anthony-Cook should apply not only to joint submissions, but to any sentencing situation where both the Crown and defence have had extensive and detailed resolution discussions that lead to the accused entering a guilty plea. This situation would also entail the Crown agreeing to seek a certain sentence or sentence range in exchange for this plea (Nahanee v The Queen, Memorandum of Argument of the Applicant at para 16).
This is because the benefits to the accused, Crown, witnesses, and justice system listed in Anthony-Cook accrue from negotiations that lead to guilty pleas regardless of whether the guilty plea is accompanied by a joint submission or a range of sentences from the Crown and accused. “[I]t is the guilty plea itself that achieves the benefits to all participants in the justice system” (Nahanee, Memorandum of Argument of the Applicant at para 18-23).
Following the logic of Anthony-Cook, these benefits are contingent on the Crown and defence actually agreeing to guilty pleas following resolution discussions with some frequency, which requires that parties be able to rely on judges deferring to the result of those resolution discussions. Per Mr. Nahanee, the deferential public interest test from Anthony-Cook should thus apply in this context as well: the trial judge should not exceed the Crown’s proposed sentence range unless the upper-limit of the range would bring the administration of justice into disrepute or is otherwise contrary to the public interest.
Extending Anthony-Cook means judges would also have to follow the specialized procedure to exceed the Crown’s sought sentence. Judges would have to inform parties that they are considering handing down a sentence exceeding the Crown’s range. Parties would then be permitted to make submissions addressing the concerns. The judge would likewise have to justify his or her choice to exceed the Crown’s proposal. Unfortunately, at this time we do not know the substance of the Crown’s counterargument to Mr. Nahanee. The Crown’s memorandum on leave to appeal did not engage with the merits of extending Anthony-Cook. Much of the Crown’s argument was that the Supreme Court should not grant leave to appeal because of a lack of case law on the issue, and that the issue was not of national importance (Nahanee v The Queen, Memorandum of Argument of the Respondent at paras 30, 39).
However, the Crown’s second argument may foreshadow what the Crown will argue in the appeal itself. The Crown argued that the issue is not of national importance because it is immaterial whether or not it is an error of law for a trial judge to exceed the Crown’s proposed range of sentences without alerting counsel. Appellate courts can only change a trial judge’s sentence if the sentence is demonstrably unfit or if the sentencing judge made an error in principle that had an impact on the sentence (R v Friesen, 2020 SCC 9 (CanLII) at para 26). If the trial judge’s failure to alert parties of his or her intent to exceed the Crown’s sought sentence is an error in law, it will only be reviewable if it caused an impact on sentence, such as if other facts could have been brought to the judge's attention. If the trial judge’s failure to alert parties to his or her intent is not an error in law, it will still be reviewable if failure to do so results in the judge's failure to consider relevant information that would have impacted the sentence.
This argument is similar to the stance adopted by Prowse JA for the British Columbia Court of Appeal in B (R.R.). Prowse JA declined to create a duty for trial judges to advise counsel if they intend on exceeding the proposed sentencing range. Instead, Prowse JA examined the trial judge’s sentencing decision in light of the requirement for the judge to consider all relevant sentencing factors. She wrote that the decision of the trial judge to exceed the proposed sentencing range was based on “thorough submissions… canvassing all relevant sentencing factors” and that she was not persuaded that counsel could have provided any further submissions that would have affected the result (B (R.R.) at para 24).
These arguments are functional. Their premise is that counsel already made every argument worth making at a sentencing hearing, and nothing is gained if the trial judge alerts counsel to their intent to exceed the range proposed and invite further arguments. At the same time, if there were important arguments that counsel could have made if they had been invited to do so, the sentencing decision will be reviewable through currently existing means.
Nahanee – The Case for Extending Anthony-Cook
When deciding whether the Anthony-Cook joint submissions sentencing test and procedure should also apply sentence ranges that are the product of plea agreements, the SCC should consider the following three points that weigh in favour of an affirmative answer.
First, the argument in B (R.R.) against a duty for trial judges to alert counsel of their intent to exceed a proposed range of sentences is equally an argument against imposing such a duty in the context of joint submissions. If an accused is sufficiently protected by judicial review of sentencing where a trial judge fails to consider a relevant factor, this suggests that any duty for a trial judge to alert counsel and ask for further submissions is superfluous. This necessary inference runs directly against the Supreme Court’s holding in Anthony-Cook. Accordingly, it remains for the Crown to prove that this argument applies differently to proposed ranges than it does to joint sentences.
The Crown’s task will be difficult given the second factor: there are not any important differences between joint submissions and sentence ranges produced by plea agreements. Nahanee’s argument is strong that Anthony-Cooks reasoning applies to sentence submissions resulting from guilty plea resolution discussions. Joint submissions and a range of proposed sentences are simply two types of this sort of submission, both of which should receive similar deference from trial judges.
Finally, the Supreme Court should consider the relative efficiency of the positions they may take. Appealing a sentencing decision is costly and time-consuming for all parties involved, including the justice system itself. Establishing a rule that minimizes the opportunities for trial judges to fail to consider relevant information is more preferable than a rule which creates potential for such a failure and leaves the accused with the onerous remedy of an appeal.