Appellate courts have been very clear that, in cases of a joint submission, when a court has a concern with the proposed sentence it must inform counsel of the concern and give them further opportunity to make submissions.
Does a court have a similar responsibility when a submission is not joint, but there is concern that the sentence proposed by the Crown is out of range? The Ontario Court of Appeal gave a very clear yes to this question.
In R. v. Sterwart, the trial judge imposed a sentence of 6 years in addition to 15.5 months of pre-trial custody after Mr. Stewart was found guilty of threatening death, assault, sexual assault and breach of probation. In lowering the sentence to one of 3 years and 8.5 months, the court explained:
 As to sentence, in our view, the trial judge made several errors in
principle. She exceeded the sentence sought by the Crown by a substantial
amount, over two years, without giving the parties an opportunity to make
submissions as to why the range suggested by counsel was inappropriate and failed
to provide reasons for such a significant departure from the suggested range.
Further, the sentence was manifestly excessive.
This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at email@example.com.