When the Sentencing Judge Exceeds the Crown’s Position on Sentence

 It is an error in principle for a sentencing judge to fail to provide notice and an opportunity for further submissions when they are considering exceeding the Crown’s position on sentence.  FN1

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:

 1. The accused would have provided additional information to the sentencing judge if given notice that he thought the Crown’s recommendation was too low and this additional information would have impacted sentence;

2.  The sentencing judge provided unclear or insufficient reasons explaining the imposition of the harsher sentence;

3. The sentencing judge gave erroneous reasons for the harsher sentence. (Standing alone, however, flawed reasoning will not be enough; the appellant must also satisfy the court that this reasoning impacted the sentence). FN2


    Stuart O’Connell, criminal defence lawyer, Toronto.

    You are welcome to contact Stuart via LinkedIn (14) Stuart O'Connell | LinkedIn



FN1:  R. v. England, 2024 ONCA 360 at para. 82; R. v. Nahanee, 2022 SCC 37, 474 D.L.R. (4th) 34 at para 52.

FN2: See R v Nahanee, 2022 SCC 37 at para 59;  most recently applied by the Court of Appeal for Ontario in R. v. A.V., 2025 ONCA 6.

 

                                     

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