Sentencing Above the Proposed Range by the Crown

In R. v. D.O., 2023 BCCA 260, the British Columbia Court of Appeal considered whether a sentencing judge had erred in not providing notice to the appellant that she intended to exceed the sentencing range proposed by the Crown.

The appellant had been charged with 15 sexual offences against children. He pleaded guilty to 11 of the offences on the second day of his trial, and was subsequently sentenced to 16 years and six months in prison. The Crown had originally proposed a range of seven to 11 years. The judge did not give the appellant notice that they intended to exceed the Crown’s recommended range.

The judge considered s. 718.3(7) of the Criminal Code, which mandates consecutive sentences for multiple sexual offences against children, and considered a long list of aggravating factors. The appellant argued that the sentencing judge erred, among other things, in that she failed to provide notice that she was intending to impose a sentence beyond the range sought by Crown counsel, in accordance with R. v. Nahanee, 2022 SCC 37.

The judge considered a prior decision, R. v. Friesen, 2020 SCC 9, which altered the way judges are to approach sentencing individuals convicted of sexual offences against children. Sentences in relation to crimes against children must increase from those previously imposed in order to reflect proportional harm. Previously in 2015, Parliament had increased the maximum sentences available for a number of offences against children. In Friesen, the Supreme Court of Canada stated that protection of children is one of the most fundamental values of Canadian society. The sentence must reflect the high moral blameworthiness of the offender.

The judge imposed the sentence prior to the decision of the Supreme Court of Canada in R. v. Nahanee, 2022 SCC 37, where the majority decision concluded that if a judge plans to impose a harsher sentence than that proposed by the Crown, the judge must notify the parties and allow them to make additional submissions. However, they went on to find that Mr. Nahanee had not shown that any further information he would (or could) have provided, had he been given notice, would have impacted the sentence.

Accordingly, the British Columbia Court of Appeal noted that mere failure to notify the parties of the intention to impose a higher sentence is not, in and of itself, an error that would warrant appellate intervention. The failure must result in an error in principle that would have actually impacted a defendant’s sentence. The appellant argued that he would have made more comprehensive submissions on sentencing and respond to what he believed were errors in relation to the judge’s assessment of aggravating and mitigating factors.

The Court of Appeal disagreed, holding that there was no error in principle made by the judge or that the appellant would have made additional submissions which would have impacted the length of sentence. One of the arguments the appellant made is that the judge erred in considering lack of remorse as an aggravating factor in sentencing. In dismissing the appeal, the Court of Appeal held that, given the appellant’s lack of remorse being tied to a lack of insight, the sentencing reasons as a whole showed the judge did not commit an error in principle. A comment by the judge about not expressing regret, in its proper context, was a reference to a lack of insight. An opportunity to address this in additional submissions would not have impacted the sentence.