Judges can give much tougher sentences than prosecutors ask for, even when an offender pleads guilty, the Supreme Court of Canada ruled on Thursday.
For the first time, the Supreme Court was asked to decide whether sentences should be effectively capped at the upper end of what prosecutors are seeking, in cases where an offender spares victims from testifying by pleading guilty.
The stakes for the criminal-justice system were high. Offenders already receive credit for pleading guilty when they are being sentenced. The question was whether they deserve a form of leniency that would tie judges’ hands.
Kerry Nahanee of British Columbia was accused of raping two teenagers. He pleaded guilty to raping one girl over a five-year period, beginning when she was 13 and he was 19. He pleaded guilty to raping a second girl on one occasion when she was 15, and he was 27.
Mr. Nahanee’s lawyers, citing his guilty plea, Indigenous background and lack of a prior criminal record, asked for three to 3½ years in prison. Prosecutors asked for four to six years.
But Justice Lyndsay Smith of the B.C. Provincial Court felt both sides were far too lenient, in light of aggravating factors such as the abuse of vulnerable children and exposure to the risk of sexually transmitted disease and pregnancy. Justice Smith sentenced Mr. Nahanee to eight years in prison in 2020.
And in a complicating factor, she had not warned either side she was considering such a tough sentence.
Mr. Nahanee’s lawyers wanted the sentencing process after a guilty plea to be similar to what happens when the prosecution and defence agree on a sentence (called a joint submission). In those cases, judges may go beyond the punishment agreed on by the two sides only if they find it was the product of a breakdown in the justice system.
No fewer than six organizations representing criminal-defence lawyers intervened in the case to support Mr. Nahanee’s call to limit a judge’s discretion in cases like his. Federal prosecutors and two provincial prosecution services intervened on the other side.
The Supreme Court overwhelmingly turned away the arguments to treat contested sentencing in a similar fashion to sentencing agreements between defence and prosecutors.
Justice Michael Moldaver, who retired at the end of August but still has six months to finish up his rulings, wrote that the defence plan would create an incentive to fight, rather than settle, on sentencing, thus adding to the burden on courts.
It would also, in effect, allow prosecutors, rather than judges, to determine the upper end of sentencing ranges for crimes. “Allowing the Crown to be the arbiter of the upper range of sentences following a guilty plea is surely not a role that Parliament intended to confer upon the Crown,” he wrote.
While the court was unanimous on that point, it ruled 7-2 to uphold the eight-year sentence. The dissenters, Justice Andromache Karakatsanis and Justice Suzanne Côté, said the judge’s failure to give notice to both sides that she was considering a longer sentence was unfair. The majority said she should have warned the two sides but that Mr. Nahanee’s lawyers had nothing extra to offer that might have changed the sentence anyway.
The result, says Tony Paisana, a lawyer who represented the Independent Criminal Defence Advocacy Society, which intervened, is that clients will need to be advised there is much less certainty when sentences are contested.
“What this case has shown is that … a judge can ‘jump’ a sentence and need not establish any particular threshold for doing so,” Mr. Paisana said in an interview.
Before it reached the Supreme Court, the Nahanee case touched on controversies involving the punishment for sexual assault and the sentencing of Indigenous offenders. (Those issues were not directly before the Supreme Court.)
Mr. Nahanee’s lawyers told the B.C. Court of Appeal that Justice Smith hadn’t sufficiently considered Mr. Nahanee’s Indigenous background. Federal sentencing law requires special consideration for Indigenous offenders.
The appeal court said Justice Smith was entitled to consider the Indigenous background of the victims, too.
Reconciliation, the appeal court wrote in a 3-0 ruling last year, “is not served by sentences that do not sufficiently deter violence against Indigenous children.”
Mr. Nahanee’s legal team also had said Justice Smith imprisoned him for much longer than previous precedents suggested were appropriate. But the Supreme Court in 2019 endorsed longer sentences for sexual offences against children, the appeal court said.