Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


R. v. Nahanee, 2022 SCC 37, October 27, 2022, at paragraph 4:

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…

Procedure-Notice Requirements (at paragraphs 44 to 46):

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.

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. Providing comprehensive reasons for this concern may, and often will, prove impossible since the judge’s position at this point is unlikely to be fixed. As indicated, the purpose is simply to put the parties on notice that the judge is considering exceeding the Crown’s proposed sentence. Notifying the parties can be as simple as saying: I am considering imposing a higher sentence than the Crown is seeking due to the seriousness of this offence (see, e.g., R. v. Scott, 2016 NLCA 16, 376 Nfld. & P.E.I.R. 167, at para. 37). While notice need not take a particular form, it must be more than simply asking questions or expressing vague concerns about the parties’ sentencing proposals.

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 as soon as possible and invite further submissions, either orally or in writing. At this juncture, the judge may be able to provide greater detail as to the reasons for their concern.