Where the trial judge intends to jump the Crown on sentence the judge should advise counsel and give them the opportunity to make submissions

R. v. Hagen, 2011 ONCA 749 deals with the situation where a judge intends to exceed the sentence sought by the Crown.  While in Canada the judge is not bound by sentencing submissions, the caselaw is clear those submissions ought to be given considerable weight.  The Court holds:

[3]              The appellant pled guilty to assault police, assault causing bodily harm, pointing a firearm, possession of a prohibited weapon with accessible ammunition, possession of a stolen firearm, possession of an incendiary device for the purpose of arson and two counts of breaching court orders.

[4]              The trial judge imposed a global sentence of 8 years 9 months less credit for pre-trial custody counted as 2:1, leaving a net sentence of 7 years 3 months.  Duty counsel on behalf of the appellant submitted to this court that although the offence calls for a penitentiary sentence, the one imposed by the trial judge was too harsh for this offender. He has a significant record but his longest previous sentence was 2 years in the penitentiary.  Furthermore, the trial judge “jumped” the Crown submission of 6 years less 1 year of credit for pre-trial custody for a net sentence of 5 years.

[5]              In our view, where the trial judge intends to jump the Crown on sentence, particularly by a significant amount, as here, the judge should advise counsel and give them the opportunity to make submissions and provide further authorities, if so advised.