Sentencing judge who intends to go outside joint submission must give an opportunity to respond

R. v. Abel, 2011 NWTCA 4 is a useful source for the principle that when a sentencing judge proposes to give a sentence outside the ranges submitted by counsel she must inform the parties of her intention and give them an opportunity to respond:

 

[23]           We agree with the appellant that when a sentencing judge proposes to give a sentence outside the ranges submitted by counsel she must inform the parties of her intention and give them an opportunity to respond. This is the obligation when there is a joint submission on sentence, and a similar obligation arises when the judge is considering a sentence outside the range proposed by counsel for each of the parties. In R v Hood, 2011 ABCA 169 (CanLII), 2011 ABCA 169, the court stated, at para 15:

 

 

We have mandated that approach in situations where the sentencing judge is disinclined to follow a joint submission: see R v GWC, 2000 ABCA 333 (CanLII), 2000 ABCA 333, 277 AR 20; and R v Tkachuk, 2001 ABCA 243 (CanLII), 2001 ABCA 243, 293 AR 171. We fully agree that counsel should be given the same opportunity in situations like this, where there is no joint submission but the sentencing judge is inclined to sentence outside the range proposed by counsel.