Supreme Court of Canada

Indexed as: R. v. Nahanee

2022 SCC 37

Appeal Heard: March 16, 2022 Judgment Rendered: October 27, 2022 Docket: 39599

Parties

Between:

Kerry Alexander Nahanee Appellant

and

His Majesty The King Respondent

— and —

Director of Public Prosecutions, Attorney General of Ontario, Attorney General of Alberta, Criminal Lawyers' Association (Ontario), Trial Lawyers Association of British Columbia, Saskatchewan Trial Lawyers Association Inc., Canadian Council of Criminal Defence Lawyers, Criminal Defence Lawyers Association of Manitoba and Independent Criminal Defence Advocacy Society Interveners

Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

Reasons for Judgment: (paras. 1 to 70) Moldaver J. (Wagner C.J. and Brown, Rowe, Martin, Kasirer and Jamal JJ. concurring)

Dissenting Reasons: (paras. 71 to 110) Karakatsanis J. (Côté J. concurring)

Subject Matter

Criminal law — Sentencing — Sentencing procedure — Guilty plea — Contested sentencing hearing — Judge imposing sentence that exceeded range proposed by Crown — Whether framework for departure from joint submissions following guilty plea applies to contested sentencing hearings following guilty plea — Whether sentencing judge required to give notice to parties and provide further opportunity for submissions if they intend to impose sentence in excess of range proposed by Crown.

Summary

At age 19, N began sexually assaulting his 13‑year‑old niece shortly after she moved in with him and his parents. The assaults continued on a frequent basis over a five‑year timeframe. At age 27, N sexually assaulted another niece, who was 15 years old, when she stayed overnight at the home N shared with his parents. N pleaded guilty to two counts of sexual assault. At the sentencing hearing, the Crown sought a global sentence of four to six years, while N sought a global sentence of three to three and a half years. The sentencing judge imposed a global sentence of eight years. N appealed, submitting, among other grounds, 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. The Court of Appeal dismissed N's appeal.

Held (Karakatsanis and Côté JJ. dissenting): The appeal should be dismissed.

Per Wagner C.J. and Moldaver, Brown, Rowe, Martin, Kasirer and Jamal JJ.: The public interest test adopted in R. v. Anthony‑Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, which instructs judges not to depart from a joint sentencing submission unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest, must remain confined to joint submissions. It does not, and should not, apply to contested sentencing hearings following a guilty plea. However, if the sentencing judge presiding over a contested sentencing hearing is of a mind to impose a harsher sentence than what the Crown has proposed, they should notify the parties and give them an opportunity to make further submissions, failing which they run the risk of having the harsher sentence overturned on appeal.

The public interest test set out in Anthony‑Cook exists to protect a specific agreed‑upon sentence proposed by the Crown and the defence to a judge in exchange for an accused's guilty plea. Its stringency is designed to protect the unique benefits that flow from joint submissions. Unlike joint submissions, contested sentencings following a guilty plea do not offer, to the same degree, the benefits that Anthony‑Cook sought to protect: certainty and efficiency. Contested sentencing hearings are characterized by a lack of agreement on a specific sentence, and therefore cannot offer the same degree of certainty as joint submissions. In addition, contested sentencing hearings are significantly less efficient than joint submissions. Although both save the justice system and its participants the time, stress, and cost of a trial, a contested sentencing requires the parties to prepare for and provide comprehensive submissions at a sentencing hearing.

If the public interest test applied to both joint submissions and contested sentencing hearings following a guilty plea, joint submissions would lose much of their attraction. They would no longer offer an unparalleled certainty as to the length of the accused's sentence, since contested sentencing hearings would offer a similar certainty. In addition, contested sentencing hearings would offer an added benefit to the accused that joint submissions would not: the possibility of a lower sentence. If joint submissions were frequently replaced with contested sentencing hearings, this would result in more lengthy and time‑consuming sentencing hearings, thereby placing an even greater strain on a justice system that is already overburdened. Furthermore, if the public interest test applied to contested sentencing hearings, the sentencing judge's role to craft fit sentences that are proportionate to the gravity of the offence and the offender's degree of responsibility would be partially usurped and offloaded onto the Crown. The sentencing judge's discretion would be limited, as the lengths of sentences would be effectively capped at the Crown's proposed upper range.

Sentencing judges presiding over contested sentencing hearings are required to notify parties and provide an opportunity for further submissions if they plan to impose a harsher sentence than what the Crown has proposed. 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. Adequate notice does not require the judge to set out in detail what it is that they find troublesome with the Crown's proposed sentence; they should, however, do so whenever possible. It is enough for a judge to advise the parties that, in their view, the sentence proposed by the Crown appears too lenient, having regard to the seriousness of the offence and/or the degree of responsibility of the accused. The opportunity for further submissions should not be relied on by the parties as a chance to pull a rabbit out of the hat; it is critical that both the Crown and the accused initially provide as much relevant information as possible in support of their respective positions. Additional submissions, they should respond to the concerns raised by the sentencing judge, including matters that the parties considered irrelevant or simply overlooked in their initial submissions.

The sentencing judge's failure to provide notice and the opportunity for further submissions is not a breach of procedural fairness but an error in principle that 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. In assessing impact, the focus should be on whether the missing information is material to the sentence at issue. Appellate intervention is also warranted where the sentencing judge failed to provide reasons, or provided unclear or insufficient reasons, for imposing the harsher sentence. Lastly, an appellate court may intervene if the sentencing judge relied on flawed or unsupportable reasoning for imposing the harsher sentence, such as the erroneous consideration of an aggravating factor or misapprehension of relevant authorities.

In the instant case, although the sentencing judge failed to provide notice that she was planning to exceed the Crown range and to provide an opportunity for further submissions, there was no impact on the sentence. N has not demonstrated that he had information to provide to the sentencing judge that would have impacted his sentence. The sentencing judge provided adequate reasons for why she exceeded the Crown range and her reasons for exceeding the Crown range, when read as a whole, were not erroneous. Furthermore, the eight‑year sentence was not demonstrably unfit.

Per Karakatsanis and Côté JJ. (dissenting): There is agreement with the majority that the public interest test from Anthony‑Cook is reserved for joint submissions. There is further agreement that a sentencing judge considering a harsher sentence than that proposed by the Crown is required to advise the parties and invite further submissions. The disagreement with the majority lies with the question of remedy when a judge fails to follow this procedure.

At a contested sentencing hearing where a sentencing judge is planning to impose a harsher sentence than that proposed by the Crown, the failure to advise counsel or invite further submissions is a breach of procedural fairness because it denies the parties adequate notice of the case to meet and the right to be heard. The flawed procedure impacts the parties' ability to make meaningful submissions, which might have addressed the judge's concerns. This creates a heightened risk that the judge will impose a sentence without all of the relevant information that might have been provided. If the parties knew the judge was considering a harsher sentence than proposed by the Crown, either party could seek to provide further information, evidence or argument to address the judge's concerns, or provide additional authorities not previously brought to the judge's attention. Given the adversarial nature of sentencing proceedings, it is unrealistic to expect that the parties will initially adduce all potentially relevant information. If counsel were expected to adduce all relevant information, in an effort to pre‑empt every potential concern of the sentencing judge, this would result in more lengthy and time‑consuming sentencing hearings, thereby placing an even greater strain on the justice system.

Procedural fairness is an independent right. It is neither appropriate nor helpful to try to fit the analysis of procedural unfairness into the framework for appellate intervention set out in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, and R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424. The decisions in Lacasse and Friesen do not detract from the Court's longstanding recognition that procedural unfairness is an independent basis for reviewing decisions affecting an individual's rights and interests. The 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 asks whether the sentence arrived at was the product of a fair procedure. A breach of procedural fairness impacts the right to a fair hearing and confidence in the process, regardless of whether or not the result is consistent with the purposes, principles and objectives of sentencing.

Where a sentencing judge imposes a harsher sentence than the Crown proposes without providing notice or inviting further submissions, the breach of procedural fairness may impact the sentence precisely because it is not possible to say whether further submissions would have impacted the sentence. In these circumstances, it is necessary to set the decision aside and conduct the sentencing afresh in order to restore fairness and the appearance of fairness to the proceedings. Thus, it is not necessary for the accused to demonstrate that the breach of procedural fairness caused actual prejudice. Where a court of appeal determines that there has been a breach of procedural fairness requiring the sentencing decision to be set aside, it must perform its own sentencing analysis without deference to the decision of first instance. Irrespective of the outcome of sentencing afresh, it is essential that fairness and the appearance of fairness have been restored.

In the instant case, there was a breach of the duty of procedural fairness that requires the sentencing decision to be set aside. The sentencing judge imposed a harsher sentence than that proposed by the Crown without providing the requisite notice or opportunity for further submissions. Even accepting that N might not have put forward substantively new information in response to an invitation for further submissions, he would have nevertheless been able to make further submissions tailored to the sentencing judge's concerns. Additionally, it is not known how the Crown would have responded to support its recommendation or how this could have addressed the sentencing judge's concerns. The appeal should be allowed and the matter referred back to the Court of Appeal to perform its own sentencing analysis to determine a fit sentence.

Cases Cited

By Moldaver J.

Distinguished: R. v. Anthony‑Cook, 2016 SCC 43, [2016] 2 S.C.R. 204; referred to: R. v. R.R.B., 2013 BCCA 224, 338 B.C.A.C. 106; R. v. Blake‑Samuels, 2021 ONCA 77, 69 C.R. (7th) 274; R. v. Jacobson, 2019 NWTSC 9, [2019] 5 W.W.R. 172; R. v. Scott, 2016 NLCA 16, 376 Nfld. & P.E.I.R. 167; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696; R. v. Shyback, 2018 ABCA 331, 366 C.C.C. (3d) 197; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350; R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554; Ruby v. Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3; A. (L.L.) v. B. (A.), [1995] 4 S.C.R. 536; Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643; R. v. McDonald, 2018 ONCA 369, 360 C.C.C. (3d) 494; R. v. Sidhu, 2022 ABCA 66, 411 C.C.C. (3d) 329; R. v. Mohiadin, 2021 ONCA 122; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869.

By Karakatsanis J. (dissenting)

R. v. Anthony‑Cook, 2016 SCC 43, [2016] 2 S.C.R. 204; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424; Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37, [2014] 2 S.C.R. 33; R. v. S. (R.D.), [1997] 3 S.C.R. 484; A. (L.L.) v. B. (A.), [1995] 4 S.C.R. 536; Lowry and Lepper v. The Queen, [1974] S.C.R. 195; R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554; R. v. Zinck, 2003 SCC 6, [2003] 1 S.C.R. 41; Supermarchés Jean Labrecque Inc. v. Flamand, [1987] 2 S.C.R. 219; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689; R. v. Blake‑Samuels, 2021 ONCA 77, 69 C.R. (7th) 274; R. v. Huon, 2010 BCCA 143; R. v. G.W.C., 2000 ABCA 333, 277 A.R. 20; R. v. Scott, 2016 NLCA 16, 376 Nfld. & P.E.I.R. 167; Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, [2013] 2 S.C.R. 623; Rush & Tompkins Ltd. v. Greater London Council, [1988] 3 All E.R. 737; R. v. Delchev, 2015 ONCA 381, 126 O.R. (3d) 267; R. v. Burback, 2012 ABCA 30, 522 A.R. 352; R. v. Ehaloak, 2017 NUCA 4; R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Walker, 2019 ONCA 765, 381 C.C.C. (3d) 259; Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643; R. v. Tran, [1994] 2 S.C.R. 951; R. v. Curragh Inc., [1997] 1 S.C.R. 537; Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; Kane v. Board of Governors (University of British Columbia), [1980] 1 S.C.R. 1105; Mobil Oil Canada Ltd. v. Canada‑Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202; R. v. Papadopoulos (2005), 196 O.A.C. 335; Drapeau v. R., 2020 QCCA 796; R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1985, c. C‑46, ss. 718.1, 718.2(a)(ii), (a)(ii.1), (a)(iii), (a)(iii.1), 718.3(1).

Authors Cited

Ruby, Clayton C. Sentencing, 10th ed. Toronto: LexisNexis, 2020.

Appeal Information

APPEAL from a judgment of the British Columbia Court of Appeal (Willcock, Fenlon and Griffin JJ.A.), 2021 BCCA 13, 69 C.R. (7th) 246, [2021] B.C.J. No. 47 (QL), 2021 CarswellBC 72 (WL), affirming a decision of Smith Prov. Ct. J., 2020 BCPC 41, [2020] B.C.J. No. 403 (QL), 2020 CarswellBC 625 (WL). Appeal dismissed, Karakatsanis and Côté JJ. dissenting.

Counsel

Hollis A. Lucky, Michael Sobkin and James A. Nadel, for the appellant.

Matthew G. Scott and Mila Shah, for the respondent.

John Walker and Jessica Lawn, for the intervener the Director of Public Prosecutions.

Jennifer Epstein and Katherine Beaudoin, for the intervener the Attorney General of Ontario.

Rajbir Dhillon, for the intervener the Attorney General of Alberta.

R. Craig Bottomley and Arash Ghiassi, for the intervener the Criminal Lawyers' Association (Ontario).

Rebecca A. McConchie and Elsa Wyllie, for the intervener the Trial Lawyers Association of British Columbia.

Evan J. Roitenberg and Thomas Hynes, for the interveners the Saskatchewan Trial Lawyers Association Inc. and the Canadian Council of Criminal Defence Lawyers.

David Ireland and Andrew Synyshyn, for the intervener the Criminal Defence Lawyers Association of Manitoba.

Tony C. Paisana and Kate Oja, for the intervener the Independent Criminal Defence Advocacy Society.

Reasons for Judgment

The judgment of Wagner C.J. and Moldaver, Brown, Rowe, Martin, Kasirer and Jamal JJ. was delivered by

Moldaver J. —

I. Introduction

[ 1 ] Where the Crown and the defence propose a specific agreed-upon sentence to a judge in exchange for an accused's guilty plea, a stringent test, known as the "public interest" test, exists to protect that submission. The test, adopted by this Court in R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, 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. Sentencing judges must not reject a joint submission lightly. They should only do so where the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system.

[ 2 ] The stringency of this test is designed to protect the unique benefits that flow from joint submissions. It provides the parties with a high degree of certainty that the sentence jointly proposed will be the sentence imposed, and it avoids the need for lengthy, costly, and contentious trials. As a rule, joint submission sentencing hearings are expeditious and straightforward. They save precious time, resources, and expenses which can be channeled into other court matters. In short, they enable the justice system to function efficiently and effectively.

[ 3 ] The appellant, Mr. Nahanee, asks the Court to extend the Anthony-Cook public interest test from joint submissions — where the Crown and the defence agree on every aspect of the sentence — to contested sentencing hearings, where they do not. In his particular case, he proposes that the public interest test apply where the Crown and the defence have put forward different sentencing ranges to the judge following a guilty plea, on the understanding that the Crown would not ask for a sentence that exceeds the high end of its sentencing range and the defence would not ask for a sentence that falls below the low end of its sentencing range. He submits that this extension of Anthony-Cook is an incremental change in the law. With respect, I disagree.

[ 4 ] In my opinion, the public interest test adopted by this Court in Anthony-Cook does not, and should not, apply to contested sentencing hearings following a guilty plea, regardless of the amount of prior negotiation between the parties culminating in the plea. In such cases, however, if the sentencing judge is of a mind to impose a harsher sentence, in any respect, than what the Crown has proposed, they should notify the parties and give them an opportunity to make further submissions — failing which, they run the risk of having the harsher sentence overturned on appeal for any one of the following three errors in principle:

(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.

[ 5 ] In the instant case, the sentencing judge imposed a global sentence of eight years on Mr. Nahanee for repeated sexual assaults of his two teenage nieces. This sentence exceeded the upper end of the sentencing range proposed by the Crown by two years. The sentencing judge did not provide notice that she planned to exceed the upper end of the Crown range, nor did she provide an opportunity for further submissions. Nonetheless, in my view, Mr. Nahanee has not shown that there was information he could have provided that would have impacted on the sentence; nor do the reasons of the sentencing judge disclose error. I would accordingly dismiss the appeal.

II. Background

[ 6 ] Mr. Nahanee and the Crown agreed on the facts at the sentencing. The agreed statement of facts included information about the sexual assaults that formed the basis of Mr. Nahanee's guilty pleas, as well as admissions about other sexual assaults on the victims that did not form part of his guilty pleas.

A. Offences Against E.N.

[ 7 ] At age 19, Mr. Nahanee began sexually assaulting his 13-year-old niece, E.N., shortly after she moved in with him and his parents, at a time when her mother was struggling with addiction. In her first year at her grandparents', E.N. awoke repeatedly to Mr. Nahanee digitally penetrating her vagina. Later that year, Mr. Nahanee forced her to engage in unprotected sexual intercourse. As she got older, she was able to resist the assaults by kicking him away. Regardless, he continued returning to her bedroom night after night.

[ 8 ] E.N. lost track of the number of assaults because they happened so frequently. The final assault, to which Mr. Nahanee admitted, fell outside the five-year timeframe captured by his guilty plea. Now 21 years old, E.N. returned to visit her grandparents. While she was sleeping next to her boyfriend, Mr. Nahanee put his hands under her shorts and tried to remove her underwear. She kicked him away.

[ 9 ] Mr. Nahanee's actions took an immeasurable toll on E.N.'s life. E.N. struggled with self-esteem. Her schooling, friendships, and family relationships suffered. She felt unable to disclose the abuse to her family for fear that it would tear them apart. Moreover, she felt that she had nowhere else to go. In her later high school years, she found herself physically and emotionally exhausted from losing sleep every night while fending off Mr. Nahanee's attacks. Years of abuse left her feeling disgusted with herself and not worthy of healthy relationships.

[ 10 ] E.N. reported the assaults to the police after she learned that her younger cousin, S.R., reported to the police that Mr. Nahanee had sexually assaulted her. Shortly thereafter, when E.N. disclosed to her grandmother how Mr. Nahanee had abused her for many years, she was met with disbelief.

B. Offences Against S.R.

[ 11 ] Five days after the final assault on 21-year-old E.N., Mr. Nahanee, now age 27, sexually assaulted S.R., his 15-year-old niece. S.R. was staying overnight with her grandparents because her mother thought it would be safer for her to sleep there, rather than returning home by bus late at night. While S.R. was asleep in the same room as three of her younger cousins, she awoke to find Mr. Nahanee pushing his fingers inside her vagina. He then proceeded to have unprotected sexual intercourse with her.

[ 12 ] S.R. reported the sexual assault to the police about an hour later. The DNA sample obtained during S.R.'s examination at the hospital revealed that the semen found in her vagina came from Mr. Nahanee. The chances that the DNA was not his were found to be 1 in 81 quintillion.

[ 13 ] The assault had immediate and long-term physical and emotional effects on S.R. She suffered from anxiety, night terrors, and flashbacks. Shortly after the assault, she had suicidal thoughts. She was also fearful for the safety of other children in her grandmother's home.

[ 14 ] In addition to the one incident described by S.R., which formed the basis of his guilty plea, Mr. Nahanee acknowledged that S.R. told her grandmother that there had been prior uncharged sexual assaults against S.R. As with E.N., her grandmother had disbelieved S.R. She accused S.R. of being vindictive and having mental health problems. S.R. was ostracized from much of the family for reporting to the police the assault that formed the basis of Mr. Nahanee's plea.

III. Procedural History

A. Reasons for Sentence, British Columbia Provincial Court, 2020 BCPC 41 (Smith Prov. Ct. J.)

[ 15 ] At the sentencing hearing, 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.

[ 16 ] Smith Prov. Ct. J. sentenced Mr. Nahanee to six years' imprisonment for the assaults on E.N., to be served consecutively to four years' imprisonment for the assault on S.R. Taking into account the principle of totality, she reduced the sentences to five and three years respectively, to be served consecutively, for a global sentence of eight years.

[ 17 ] In arriving at this sentence, Smith Prov. Ct. J. gave primary consideration to the objectives of denunciation and deterrence, given that Mr. Nahanee's offences involved the abuse of victims under the age of 18. In her view, four aggravating factors codified in the Criminal Code, R.S.C. 1985, c. C-46, applied to all of the offences: abuse of a family member (s. 718.2(a)(ii)); abuse of a person under the age of 18 (s. 718.2(a)(ii.1)); abuse of a position of trust (s. 718.2(a)(iii)); and the offences had a significant impact on the victims (s. 718.2(a)(iii.1)).

[ 18 ] Other aggravating factors common to both cases included that: the assaults involved unprotected intercourse, exposing the victims to a risk of pregnancy and sexually transmitted infections; both complainants were highly vulnerable while asleep; and the assaults occurred in a place where the victims had sought safety — their grandmother's house. In E.N.'s case, there were eight instances of sexual intercourse. In S.R.'s case, other aggravating features included that: there was a 12-year age difference between S.R. and Mr. Nahanee; the assault was "not an isolated incident" (sentencing reasons, at para. 91); it was brazenly committed while other children slept nearby; and Mr. Nahanee had initially attempted to shift blame onto S.R.

[ 19 ] Mitigating factors in both cases included that: Mr. Nahanee entered a guilty plea; he was relatively young; and he had no criminal record. He also had a good work history, a supportive family in the community, and abided by his bail conditions. Although Mr. Nahanee demonstrated limited insight into the gravity of his crimes, Smith Prov. Ct. J. found that his expression of remorse was genuine and that he voiced a need and willingness to undergo treatment in the future.

[ 20 ] Smith Prov. Ct. J. considered Mr. Nahanee's Indigenous background at length. She reviewed the Gladue report, the evidence of Mr. Nahanee's mother, and Mr. Nahanee's background, and found that none of the personal mitigating factors often present in cases of Indigenous offenders existed here. Hence, there was no basis to reduce his blameworthiness on account of his Indigeneity. Although Smith Prov. Ct. J. took into account his family's historic experiences, including his grandparents' and father's attendance at residential schools, this was partly offset by the fact that both victims were Indigenous females who were more vulnerable to sexual assault than non-Indigenous women.

B. British Columbia Court of Appeal, 2021 BCCA 13, 69 C.R. (7th) 246 (Willcock, Fenlon and Griffin JJ.A.)

[ 21 ] The Court of Appeal unanimously dismissed Mr. Nahanee's sentence appeal. The court did not accept Mr. Nahanee's submissions that the sentencing judge erred by: (1) failing to alert counsel that she planned to impose a sentence in excess of that sought by Crown counsel; (2) imposing a demonstrably unfit sentence; (3) incorrectly applying statutory and common law aggravating factors; and (4) failing to properly consider his Indigenous heritage. Only the first ground of appeal is at issue in this Court.

[ 22 ] With respect to this ground, the Court of Appeal found that it was bound by its own precedent in R. v. R.R.B., 2013 BCCA 224, 338 B.C.A.C. 106, which held that, while it is preferable for a judge to notify parties that they plan to impose a sentence greater than that sought by the Crown and invite further submissions, failure to do so does not amount to reversible error. Nor did the court agree with Mr. Nahanee that R.R.B. had been overtaken by Anthony-Cook, such that the public interest test should apply to the negotiated sentencing ranges in his case. In the court's view, R.R.B. was distinguishable because, like Mr. Nahanee's case, it dealt with a contested sentencing rather than a joint submission, which was the sole focus of Anthony-Cook.

[ 23 ] In the court's view, had the trial judge been obliged to notify counsel and invite further submissions, the failure to do so would only amount to a reversible error if Mr. Nahanee could show he was prejudiced. In this regard, the evidence Mr. Nahanee said he would have introduced at trial — that his second guilty plea, to the offence against E.N., was only entered after he was assured of the Crown's sentencing position — was before the judge. The judge was told by defence counsel that Mr. Nahanee entered his second guilty plea following "extensive resolution discussions" that included "a thorough statement of facts and [the] Crown's sentencing [position]" (C.A. reasons, at para. 56). There was no prejudice to Mr. Nahanee warranting interference with his sentence.

IV. Issues

[ 24 ] This appeal raises three issues:

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?

V. Analysis

A. Anthony-Cook Does Not Apply to Contested Sentencing Hearings Following a Guilty Plea

[ 25 ] Anthony-Cook set out a stringent public interest test which must be met before sentencing judges can reject a joint submission following a guilty plea. At para. 34, the Court stated that:

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.

[ 26 ] This test sets a very high bar by design. It is meant to encourage agreement between the parties, which saves court time at sentencing. The test also incentivizes guilty pleas, sparing victims and the justice system the need for costly, time-consuming trials (Anthony-Cook, at paras. 35 and 40). Accused persons benefit because they have a very high degree of certainty that the sentence jointly proposed will be the sentence they receive; and the Crown benefits because it is assured of a guilty plea on terms it is prepared to accept (paras. 36-39). Both parties also benefit by not having to prepare for a trial or a contested sentencing hearing.

[ 27 ] To be clear, a joint submission covers off every aspect of the sentence proposed. 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. Apart from the logistical problems of applying two different tests to parts of the same proposed sentence, at the end of the day, there is only one composite sentence. Arriving at a sentence involves an assessment of all of its component parts. Isolating one or two parts of the sentence and subjecting them to a different test is antithetical to this determination, and may well undermine it.

[ 28 ] Mr. Nahanee asks this Court to extend the public interest test to contested sentencing hearings following a guilty plea, which generally will have come about after some negotiation between the Crown and the accused. He submits that the benefits of resolution discussions identified in Anthony-Cook apply equally to joint and contested submissions on sentence.

[ 29 ] With respect, I do not accept Mr. Nahanee's position. While recognizing that a contested sentence hearing following a guilty plea spares victims and the justice system the need for costly trials, the Anthony-Cook public interest test must remain confined to joint submissions for three reasons.

(1) The Benefits of Joint Submissions Are Significantly Lessened With Contested Sentencings

[ 30 ] Contested sentencings following a guilty plea must be treated differently than joint submissions following a guilty plea because they do not offer, to the same degree, the benefits that Anthony-Cook sought to protect: certainty and efficiency. The public interest test encourages agreement on a specific agreed-upon sentence and offers certainty for the parties by protecting this agreement in order to promote efficient outcomes for the justice system and all participants. There is no such certainty or agreement where the Crown and the defence propose different sentencing ranges.

[ 31 ] Contested sentencings are characterized by a lack of agreement on a specific sentence, and therefore cannot offer the same degree of certainty as joint submissions. Joint submissions, which cover off every aspect of the sentence proposed to the court, offer certainty because of agreement in the form of a quid pro quo: the accused agrees to plead guilty in exchange for the Crown agreeing to recommend a specific sentence to the court that both the Crown and the accused find acceptable (Anthony-Cook, at para. 36). Nothing remains to be litigated. By its very nature, the quid pro quo of which I speak does not exist with contested sentencings, regardless of the amount of prior negotiation between the parties culminating in the guilty plea (I.F., Attorney General of Ontario, at para. 7). The proposed sentence is neither fixed nor final. Loose ends remain to be litigated. Even in situations where the Crown and the accused may have resolution discussions prior to a contested sentencing hearing, the fact remains that the Crown is not agreeing to recommend a specific sentence to the court upon which the parties agree.

[ 32 ] Unlike a joint submission where both parties can be reasonably certain that their agreed upon position will be the outcome, the most an accused can reasonably expect at a contested sentencing is that the sentence is likely to fall within the disparate ranges proposed by counsel, and that it will not likely exceed the Crown's upper range. Contested sentencings lack the agreement of a quid pro quo — and resulting certainty — that this Court sought to protect in Anthony-Cook.

[ 33 ] In addition to providing a heightened degree of certainty for the parties, joint submissions are also significantly more efficient for the justice system than contested sentencing hearings. Although both save the justice system and its participants the time, stress, and cost of a trial, a contested sentencing requires the parties to prepare for and provide comprehensive submissions at a sentencing hearing. A joint submission hearing, on the other hand, can be counted on to take a fraction of the time and resources.

[ 34 ] This case provides an excellent example of the time and resources a contested sentencing hearing can eat up. Mr. Nahanee's sentencing hearing took an entire day. The Crown and the defence properly put their best foot forward, providing lengthy submissions in support of the reasonableness of their positions. Following the hearing, the judge needed two weeks to deliberate and render a written decision. In contrast, joint submission hearings generally consist of the Crown reading in an agreed statement of facts and setting out the joint position. This will usually be completed in short order, with the sentence being imposed on the spot. Rarely is the judge required to render a lengthy decision.

[ 35 ] To be clear, these reasons should not be taken as placing pressure on accused persons to agree to a joint submission which they feel is not in their best interests. Proceeding to a contested sentencing may be the advisable choice for any number of reasons. Regardless, by virtue of their nature, joint submissions and contested sentencing hearings are not alike and should not be treated as though they are.

[ 36 ] Anthony-Cook protected joint submissions following a guilty plea because of their unique benefits to the justice system and all of its participants. These benefits — namely certainty and efficiency — are significantly attenuated in contested sentencing hearings. As a result, contested sentencings do not demand the stringent protection that the public interest test provides for joint submissions.

(2) Joint Submissions Would Be Discouraged

[ 37 ] If the Anthony-Cook public interest test applied to both joint submissions and contested sentencing hearings following a guilty plea, joint submissions would lose much of their attraction. They would no longer offer an unparalleled certainty as to the length of the accused's sentence, since contested sentencings would offer a similar certainty. Where a joint submission is put forward, it will be the rarest of cases that a judge applying the public interest test deviates from the specific sentence proposed. In a contested sentencing, a judge applying the public interest test would be equally constrained from imposing a sentence that exceeded the upper end of the sentencing range proposed by the Crown.

[ 38 ] In addition to offering a high degree of certainty like joint submissions, a contested sentencing hearing would offer an added benefit to the accused that a joint submission would not: the possibility of a lower sentence. Accused persons might prefer contested sentencings over joint submissions because they have the chance of achieving a more favourable outcome. If joint submissions were frequently replaced with contested sentencing hearings, this would result in more lengthy and time-consuming sentencing hearings, thereby placing an even greater strain on a justice system that is already overburdened.

[ 39 ] Discouraging joint submissions by making contested sentencings a more attractive option undermines the overriding purpose of Anthony-Cook: to encourage joint submissions. As this Court stressed in Anthony-Cook, joint submissions not only "permit the accused to make an informed decision about whether to plead guilty", they also "permit victims to obtain a measure of closure" (para. 40). In addition, joint submissions serve the public interest by conserving finite judicial and prosecutorial resources.

(3) The Sentencing Judge's Role Would Be Undermined

[ 40 ] Sentencing judges are entrusted with crafting fit sentences that are proportionate to the gravity of the offence and the offender's degree of responsibility (Criminal Code, s. 718.1). Applying the public interest test to contested sentencing hearings would compromise this function, as the judge's discretion to craft a fit sentence would be limited by the Crown's proposed upper range.

[ 41 ] As a result, one aspect of the responsibility to craft a fit sentence would gradually shift from sentencing judges to the Crown. The upper ranges for guilty pleas would effectively become a Crown prerogative. Although judicial discretion is limited to the extent that sentences must fall within the range established by Parliament and the case law, it would be a significant and unprecedented further incursion on judicial discretion to effectively cap sentences at the Crown's proposed upper range.

[ 42 ] To summarize, the stringent public interest test in Anthony-Cook applies only to joint submissions following guilty pleas, and not to contested sentencings following guilty pleas, for three main reasons: (1) the benefits of a joint submission — certainty and efficiency — are significantly lessened in contested sentencing hearings; (2) if the public interest test applied to contested sentencings, it would discourage joint submissions; and (3) applying the public interest test to contested sentencings would undermine the role of sentencing judges to craft fit and proportionate sentences.

B. Sentencing Judges Are Required to Provide Notice and an Opportunity for Further Submissions

[ 43 ] Mr. Nahanee and the Crown agree, as do I, that sentencing judges should notify the parties and provide an opportunity for further submissions if they plan to impose a harsher sentence than what the Crown has proposed. The parties diverge on what consequences flow from a failure to do so.

[ 44 ] Sentencing judges 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.

[ 45 ] Adequate notice does not require the judge to set out in detail, or with exactitude, what it is that they find troublesome with the Crown's proposed sentence; they should, however, do so whenever possible. It is enough for a judge to advise the parties that, in their view, the sentence proposed by the Crown appears too lenient, having regard to the seriousness of the offence and/or the degree of responsibility of the accused.

[ 46 ] There may be cases where the judge has no thought of imposing a harsher sentence than the Crown has proposed until the sentencing hearing is over and the judge has reserved their decision. When that occurs, the judge should notify the parties and provide a further opportunity for submissions before they render their decision. This can be done in a variety of ways, such as recalling the parties for further oral submissions or requesting that they provide written submissions.

[ 47 ] According to Mr. Nahanee, an accused should be allowed to withdraw their guilty plea when the judge provides notice that they are considering exceeding the Crown range. I would not give effect to this submission. Sentencing judges should only permit an accused to withdraw a guilty plea where it is demonstrably clear that the guilty plea was premised on a specific sentence being imposed. Nothing more.

[ 48 ] It is critical that both the Crown and the accused initially provide as much relevant information as possible at the contested sentencing hearing in support of their respective positions. The opportunity for further submissions should not be relied on by the parties as a chance to pull a rabbit out of the hat. Additional submissions should respond to the concerns raised by the sentencing judge, including matters that the parties considered irrelevant or simply overlooked in their initial submissions.

[ 49 ] In appropriate cases, where facets of the plea negotiation are highly relevant to support the reasonableness of the Crown's proposed sentence — which may at first blush seem very low — the parties are well-advised to reveal the pertinent information in their initial submissions rather than holding it back for further submissions.

[ 50 ] Where the parties are put on notice and given an opportunity to make further submissions, the format for doing so rests with the judge in consultation with the parties. The judge may seek oral or written submissions, or both. The parties must be given a reasonable opportunity to respond to the sentencing judge's concerns.

C. Mr. Nahanee's Sentence Does Not Warrant Intervention

[ 51 ] Mr. Nahanee submits that, in cases like his, a judge's failure to provide notice and/or the opportunity for further submissions is a breach of procedural fairness that will always justify a hearing where the sentence is considered afresh, even where the accused has not identified what information he would have provided to the sentencing judge, had notice been provided.

[ 52 ] With respect, I disagree. Procedural fairness is not the applicable route of appeal. Rather, the applicable route of appeal is the error in principle model, as outlined in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089. The judge's failure to notify the parties and provide a further opportunity for submissions is an error in principle that will justify appellate intervention only if, in the circumstances, it had an impact on the sentence.

[ 53 ] The doctrine of common law procedural fairness was largely developed in administrative law cases, but the principles are also applicable to criminal cases (see, e.g., Lyons, at p. 361). It is well established that the requirements for procedural fairness are context-specific; what procedural fairness requires depends on the context of the decision being made (see Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 21).

[ 54 ] Mr. Nahanee alleges that the procedural unfairness in his case is a breach of the rule of audi alteram partem: a person must be given an opportunity to be heard where the outcome will affect them (A. (L.L.) v. B. (A.), [1995] 4 S.C.R. 536, at para. 25). While I accept that procedural fairness applies in sentencing proceedings, I do not accept that a sentencing judge's failure to provide notice and the opportunity for further submissions should be classified as a breach of procedural fairness.

[ 55 ] A fair hearing must generally allow the parties to know the opposing party's case so that they can respond to it and bring evidence in support of their position (Rodgers, at para. 48; see also Ruby, at para. 40). According to this general principle, a fair hearing in the criminal sentencing context requires that the parties be provided notice of the case they must meet.

[ 56 ] Here, Mr. Nahanee claims that he is entitled to be sentenced afresh because he was deprived of the opportunity to provide information at his sentencing hearing, assuming such information exists, regardless of whether it would have had an impact on the sentence. In my view, this goes too far.

[ 57 ] I say that because, in this context, there is no meaningful loss of procedural fairness since, by its nature, the informational deficiency, if it exists, is one that can be readily remedied on appeal (Baker, at para. 24). The basis of the appeal is the sentencing judge's decision — and the reasons in support of that decision — which are before the appellate court. If the sentencing judge's failure to provide notice and an opportunity for further submissions has or may have had an impact on the sentence, it will appear from the judge's reasons.

[ 58 ] Mr. Nahanee suggests that the error in principle model is inappropriate because appellate judges will be unable to assess impact, since they can never know what the parties may have put before the judge, had the parties been offered a further opportunity to make submissions. This concern is addressed when looking at the types of errors in principle that may flow from a sentencing judge's failure to provide notice and an opportunity for further submissions.

[ 59 ] In my view, where the sentencing judge fails to provide notice and/or an opportunity for further submissions, there are three types of errors in principle that would warrant intervention by the appellate court:

(i) the appellant demonstrates that he had information to provide to the sentencing judge that would have impacted the sentence — in these circumstances, the failure to notify the parties and give them an opportunity for further submissions had, or may have had, an impact on the sentence;

(ii) the sentencing judge failed to provide reasons, or provided unclear or insufficient reasons, for imposing the harsher sentence, thereby foreclosing meaningful appellate review — for instance, where the record does not disclose why the judge exceeded the Crown range; or

(iii) the sentencing judge relied on flawed or unsupportable reasoning for imposing the harsher sentence — for instance, where the judge erroneously relied on an aggravating factor, misapprehended a relevant authority, or made findings unsupported by the record.

[ 60 ] An appellant may argue one or more of these three grounds of appeal. In cases where it may be difficult for the appellant to demonstrate impact based on the content of the sentencing judge's reasons, the latter two grounds of appeal — in addition to offering an independent basis for appellate intervention — may serve to establish that there was, or may have been, an impact on the sentence.

[ 61 ] If there is an error in principle that impacts the sentence, the appellate court may sentence the appellant afresh without deference, save for the findings made by the sentencing judge (Friesen, at para. 28). Although I need not decide whether an appellate court can also sentence afresh when it agrees with a sentencing judge's findings but finds that the judge failed to give adequate reasons for exceeding the Crown range, I note that, in general, "meaningful appellate review cannot proceed" where reasons for judgment are insufficient (R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 24).

[ 62 ] Mr. Nahanee asks this Court for a fresh sentencing hearing on the basis that he was denied procedural fairness at the sentencing hearing. I decline to do so, for reasons I have already explained. Rather, I consider the three possible errors, none of which justifies appellate intervention.

[ 63 ] Although the sentencing judge failed to provide notice that she was planning to exceed the Crown range and to provide an opportunity for further submissions, there was no impact on the sentence. Mr. Nahanee has not demonstrated that he had information to provide to the sentencing judge that would have impacted his sentence.

[ 64 ] This information was already before the sentencing judge. At the plea proceeding prior to sentencing, Mr. Nahanee's trial counsel indicated to the judge that the matter regarding E.N. had been set down for trial but that, "[t]hrough extensive resolution discussions, the Crown and the defence ha[d] been able to reach a resolution, an agreed statement of facts, and the Crown ha[d] a sentencing position" (quoted in C.A. reasons, at para. 56 (emphasis added)). This included the assurance that the Crown's position was "four to six years". Not only was this information before the sentencing judge, she specifically referred to it in her reasons, noting that: "The defence contends his plea was contingent upon the Crown's sentencing position of four to six years" (sentencing reasons, at para. 109 (emphasis added)).

[ 65 ] The sentencing judge was well aware of the information Mr. Nahanee now says he would have provided had the judge given him notice. Hence, he has not demonstrated any impact on his sentence warranting intervention.

[ 66 ] The sentencing judge provided adequate reasons for why she exceeded the Crown range. Although it would have been preferable had she explicitly addressed this issue, the judge's detailed reasons leave no question as to why the Crown's range of four to six years was too low. In a thorough and carefully crafted decision, she reviewed and explained the aggravating factors at length, noting, among other things, the duration and frequency of the assaults on E.N., the impact of those assaults on the victims, and the steps Mr. Nahanee had taken to cover up his assaults, as well as Mr. Nahanee's limited insight into the gravity of his crimes.

[ 67 ] The sentencing judge's reasons for exceeding the Crown range, when read as a whole, were not erroneous. As noted above, the factors she considered were relevant and supported her conclusion that the upper end of the Crown's range was too low.

[ 68 ] The eight-year sentence was not demonstrably unfit. The sentencing judge pre-empted this Court's decision in Friesen — released only two months later — that upper-single and double-digit penitentiary terms for sexual offences against children are "entirely appropriate" in some cases (para. 114). In R. v. Sidhu, 2022 ABCA 66, 411 C.C.C. (3d) 329, at para. 42, the Court of Appeal for Alberta recently affirmed that Friesen removed any prior sentencing "ceiling" for sexual offences against children.

[ 69 ] Mr. Nahanee's prolonged and profoundly harmful actions irreparably impacted the lives of two young Indigenous women. His actions highlight the heightened risk of sexual assault faced by marginalized young women. Mr. Nahanee was in a position of trust and family authority, and his victims were utterly vulnerable. As well, the assaults occurred over a period of eight years, with the potential to continue. In these circumstances, the eight-year sentence, while at the very high end, was not demonstrably unfit.

[ 70 ] I would dismiss Mr. Nahanee's appeal.

Dissenting Reasons

Karakatsanis J. (Côté J. concurring) (dissenting) —

[ 71 ] I would allow this appeal and remit the matter to the Court of Appeal for British Columbia for sentencing afresh. I agree with my colleague that the sentencing judge was not required to apply the public interest test from R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, and that she was required to advise the parties and invite further submissions before imposing a harsher sentence than what was proposed by the Crown. I disagree with my colleague's analysis of the appropriate remedy when a judge fails to follow this procedure.

[ 72 ] In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, and R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, this Court set out the principles concerning appellate intervention in appeals from the sentence imposed. For good reason, these decisions limit the circumstances in which appellate courts can interfere with the sentencing judge's exercise of discretion to impose a fit sentence.

[ 73 ] In my view, it is fundamentally unfair for a sentencing judge to impose a sentence upon an accused that is harsher than the one proposed by the Crown without giving the parties notice and an opportunity to respond to the judge's concerns. An accused's ability to make full answer and defence extends to the sentencing stage, and includes the right to be heard before a judge imposes a sentence that goes beyond what the Crown has sought.

[ 74 ] Sentencing is a dynamic process in which the art of advocacy, the adversarial context, and the parties' legitimate expectations play an important role; the parties are entitled to put their best foot forward to respond to the case they must meet. An accused who faces a sentence more severe than the Crown proposes has had neither adequate notice of the case they must meet nor a proper opportunity to be heard. This breach of fundamental fairness is not made right by allowing the matter to proceed on appeal without a new sentencing hearing, without deference to the sentencing judge's flawed decision.

[ 75 ] I proceed as follows. First, I consider the duty of procedural fairness and the high degree of procedural fairness that is required in sentencing proceedings. Second, I conclude that the duty of procedural fairness is breached where a sentencing judge imposes a harsher sentence than proposed by the Crown without giving the parties notice and an opportunity to be heard. Third, I address the appropriate remedy for a breach of procedural fairness. Finally, I apply these principles to the facts of this case.

A. The Duty of Procedural Fairness in Sentencing

[ 76 ] I begin with first principles. Procedural fairness is a rule of fundamental justice (Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37, [2014] 2 S.C.R. 33, at para. 41; R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 32). The requirements of procedural fairness are context-specific (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 21). In this case, I am concerned with procedural fairness in the context of a sentencing proceeding under the Criminal Code, R.S.C. 1985, c. C-46.

[ 77 ] An essential component of procedural fairness is that parties have the right to be heard. Individuals whose rights, privileges or interests are affected by a decision must be given an opportunity to be heard before the decision is made (A. (L.L.) v. B. (A.), [1995] 4 S.C.R. 536, at para. 25). The right to be heard extends to the right to be heard on all "relevant issues" in a proceeding (Lowry and Lepper v. The Queen, [1974] S.C.R. 195, at p. 210).

[ 78 ] The right to be heard is closely tied to the right to notice of the case to meet. The case to meet informs the parties of the issues they need to address and guides their submissions and the evidence they will adduce at the hearing (Harkat, at para. 57; see also R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 48).

[ 79 ] In sentencing proceedings, a high degree of procedural fairness is required. It is well established that the requirements of procedural fairness are context-specific (R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, at para. 47; R. v. Zinck, 2003 SCC 6, [2003] 1 S.C.R. 41, at para. 37). Sentencing proceedings engage significant liberty interests of the accused. An accused's liberty is directly at stake at sentencing (see Supermarchés Jean Labrecque Inc. v. Flamand, [1987] 2 S.C.R. 219, at p. 233). A high degree of procedural fairness is therefore required in criminal proceedings generally and in sentencing proceedings in particular.

[ 80 ] Procedural fairness is also particularly important in sentencing proceedings due to their adversarial nature. In the adversarial justice system, the positions of the parties and their framing of the issues will guide the evidence led and submissions made during a proceeding. Unlike inquisitorial models, in our adversarial system, neither the judge nor any other independent party is responsible for ensuring all potentially relevant information is before the court. Rather, it is the parties who are responsible for bringing information before the court.

[ 81 ] As a result, it is critical that the parties have notice of the case to meet and an opportunity to be heard where a judge intends to depart from their submissions on sentencing.

[ 82 ] In Anthony-Cook, at para. 58, the Court stated that where a trial judge is troubled by a joint submission on sentence, "fundamental fairness dictates that an opportunity be afforded to counsel to make further submissions in an attempt to address the court's concerns". This same fundamental fairness is required where a sentencing judge intends to exceed the Crown's proposed range.

[ 83 ] The failure to advise counsel or invite further submissions regarding the judge's intention to impose a harsher sentence than the Crown's recommendation is a breach of procedural fairness because it denies the parties adequate notice of the case to meet and the right to be heard.

[ 84 ] Respectfully, I do not agree with the assumption that where a judge fails to provide notice or an opportunity for further submissions in the context of a contested sentencing hearing, the parties will have already provided comprehensive submissions on all relevant issues. My colleague reasons that in a contested sentencing hearing, "it is critical that both the Crown and the accused initially provide as much relevant information as possible" (para. 48), and in appropriate circumstances, it is "well-advised" for the parties "to reveal the pertinent information in their initial submissions rather than holding it back for further submissions" (para. 49). With respect, this places too high a burden on parties who cannot be expected to anticipate every concern the sentencing judge might have.

[ 85 ] First, given the adversarial nature of sentencing proceedings, it is unrealistic to expect that the parties will initially adduce all potentially relevant information. The submissions of the Crown and the accused will be tailored to each other's case and to the positions they have taken. Relevant information to which the parties did not attach significance, in the context of their respective submissions, might have been brought forward had the judge identified the sentencing range that was under consideration.

[ 86 ] Counsel may also choose not to reveal certain information during the sentencing hearing, even though it may be relevant, absent some indication that it bears on an issue of concern to the sentencing judge. For example, there may be a negotiated aspect of the plea that the Crown could have revealed to justify its lower range but that it did not bring forward due to the expectation that the agreed range would be respected (see R. v. Blake-Samuels, 2021 ONCA 77, 69 C.R. (7th) 274, at para. 20 (per Tulloch J.A.); R. v. Burback, 2012 ABCA 30, 522 A.R. 352, at para. 14).

[ 87 ] If the parties knew the judge was considering a sentence harsher than the Crown proposes, the Crown could provide useful information to justify the reasons for its position (see, e.g., R. v. Burback, 2012 ABCA 30, 522 A.R. 352, at para. 14; R. v. Ehaloak, 2017 NUCA 4, at para. 55), and the accused could bring forward mitigating circumstances not initially emphasized at the hearing, provide additional authorities not previously brought to the judge's attention, or offer a counter-argument about the gravity of the offence and the offender's degree of responsibility.

[ 88 ] These considerations highlight the importance of ensuring that the parties have notice and an opportunity to respond to the sentencing judge's concerns; the failure to adhere to this procedure is a breach of the duty of procedural fairness. I now turn to the appropriate remedy.

B. Appropriate Remedy for a Breach of Procedural Fairness

[ 89 ] In Lacasse and Friesen, this Court stated that an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrably unfit; or (2) the sentencing judge made an error in principle that had an impact on the sentence (Lacasse, at para. 44; Friesen, at para. 26). An error in principle is "an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor" (Lacasse, at para. 44).

[ 90 ] This deferential approach to appellate review of sentencing decisions is critical. Parliament chose to grant discretion to sentencing judges to determine the appropriate degree and kind of punishment under the Criminal Code, R.S.C. 1985, c. C-46, within the limits set by Parliament (R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 91). As this Court noted in Lacasse, at para. 2, "the discretion conferred on sentencing judges is a reflection of the individualized nature of the sentencing process and the fact that the sentencing judge is best placed to determine a just and appropriate sentence".

[ 91 ] The respondent Crown relies on Lacasse and Friesen to argue that a procedural deficiency in sentencing may justify appellate intervention only if it had an impact on the sentence: "In the absence of an impact on the sentence that was imposed, there is no basis for appellate intervention" (R.F., at para. 37 (emphasis omitted)). While I agree that the Lacasse and Friesen framework should generally govern appeals from sentencing decisions, I also conclude that it was not intended to restrict appellate courts from considering procedural fairness.

[ 92 ] In my view, it is neither appropriate nor helpful to try to fit the analysis of procedural unfairness into the framework for appellate intervention set out in Lacasse and Friesen. First, these decisions were not concerned with issues of procedural unfairness; they addressed the substantive principles that govern the exercise of a sentencing judge's discretion. As a result, these decisions should not be read as limiting an accused's ability to appeal on the basis of procedural unfairness.

[ 93 ] Second, issues of procedural fairness are not captured by the Lacasse and Friesen framework because procedural fairness is an independent right. The decisions in Lacasse and Friesen do not detract from this Court's longstanding recognition that procedural unfairness is an independent basis for reviewing decisions affecting an individual's rights and interests (Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643; R. v. Tran, [1994] 2 S.C.R. 951; R. v. Curragh Inc., [1997] 1 S.C.R. 537; Baker, at para. 24).

[ 94 ] Thirdly, given that it is an independent right, the 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. If the process was unfair, the decision that resulted from that process will be set aside regardless of whether the decision is substantively correct.

[ 95 ] Procedural fairness asks whether the sentence arrived at was the product of a fair procedure. By contrast, the inquiry into the fitness of a sentence focuses on whether it constitutes an "unreasonable departure" from the fundamental principle of proportionality, taking into account all of the relevant factors (Lacasse, at para. 55). While an unfair sentencing procedure may produce an unfit sentence, the two inquiries are analytically distinct, and procedural unfairness is an independent basis for setting aside a decision.

[ 96 ] Similarly, an assessment of whether there was an error in principle that impacted sentence is separate from an assessment of procedural fairness. Errors in principle include "an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor" (Lacasse, at para. 44). None of these constitutes a procedural deficiency of the kind at issue here.

[ 97 ] Additionally, in many cases, it will be impossible for an accused to demonstrate that a breach of procedural fairness had an actual impact on sentence. I agree with the observation from C. C. Ruby, Sentencing (10th ed. 2020), at §3.93, that, "[w]here parties were not given a real opportunity to make submissions the court cannot gauge what impact those submissions might have had". In contrast to the "error in principle" analysis, procedural fairness does not require an accused to demonstrate the actual impact of the breach.

[ 98 ] In my view, a breach of the duty of procedural fairness in sentencing, in itself, will generally require that the decision of the sentencing judge be set aside. Procedural fairness is an essential aspect of a sentencing hearing.

[ 99 ] The Crown argues that, where a sentencing judge imposes a more stringent sentence without providing notice or an opportunity for further submissions, there is no meaningful loss of procedural fairness, since a sentence appeal is "the forum which makes up for any deficiency in the sentencing process" (R.F., at para. 45). I respectfully disagree.

[ 100 ] The task of an appellate court is fundamentally different when it acts in its appellate function and when it acts as a court of first instance. In the former role, the court begins its examination of the sentence from a position of deference. In the latter role, it conducts the analysis afresh. Where there has been a procedural deficiency — whether or not the deficiency impacted the sentence — the appellate court should not exercise its appellate function but rather conduct its own analysis afresh.

[ 101 ] Where a sentencing judge imposes a harsher sentence than the Crown proposes without providing notice or inviting further submissions, the breach of procedural fairness may have had an impact on the sentence precisely because it is not possible to say whether further submissions would have impacted the sentence.

[ 102 ] Thus, it is not necessary for the accused to demonstrate that the breach of procedural fairness caused actual prejudice. As the Court stated in Cardinal, "I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision" (p. 661, cited with approval in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, at pp. 636-37).

[ 103 ] A new determination of a fit sentence will be required, because the procedural deficiency may have worked to the prejudice of one of the parties (Kane v. Board of Governors (University of British Columbia), [1980] 1 S.C.R. 1105, at pp. 1113-14). A new determination with full submissions that ensures the fairness of the process is the appropriate remedy.

[ 104 ] In sum, where a sentencing judge fails to advise the parties and invite submissions concerning his or her intention to impose a harsher sentence than the Crown proposes, it is not possible to say whether further submissions would have impacted the sentence. The sentencing judge's decision should be set aside, and the matter should be remitted for sentencing afresh.

[ 105 ] Where a court of appeal determines that there has been a breach of procedural fairness requiring the sentencing decision to be set aside, it must perform its own sentencing analysis without deference to the decision of first instance. In R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 26, this Court confirmed that an appellate court may conduct its own sentencing analysis in appropriate cases. It must do so where the underlying decision has been tainted by a procedural deficiency; in such a case the appellate court cannot exercise its appellate function but instead must conduct the analysis afresh, with the benefit of the parties' full submissions.

[ 106 ] In sentencing afresh, the appellate court may reach a decision that coincides with the penalty imposed at first instance, despite the additional submissions and analysis. However, irrespective of the outcome of sentencing afresh, it is essential that fairness and the appearance of fairness have been restored.

[ 107 ] The appellant, Mr. Nahanee, seeks an order allowing the appeal, and asks this Court to impose a sentence consistent with the Crown and the defence counsel's sentencing recommendation, or, in the alternative, to refer the matter back to the Court of Appeal for British Columbia for sentencing afresh. I would grant the alternative relief sought and would refer the matter back to the Court of Appeal for sentencing afresh.

[ 108 ] I have come to the conclusion that there was a breach of the duty of procedural fairness that requires the sentencing decision to be set aside. The sentencing judge imposed a harsher sentence than what the Crown proposed without providing the requisite notice or opportunity for further submissions.

[ 109 ] Even accepting that Mr. Nahanee might not have put forward substantively new information in response to an invitation for further submissions, he would have nevertheless been able to make further submissions tailored to the sentencing judge's concerns. Additionally, it is not known how the Crown would have responded to support its recommendation or how this could have addressed the sentencing judge's concerns.

[ 110 ] For the foregoing reasons, I would allow the appeal and would refer the matter back to the Court of Appeal for British Columbia to perform its own sentencing analysis to determine a fit sentence.