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Criminal - Sentencing - Judge Exceeding Crown. R. v. A.V.
In R. v. A.V. (Ont CA, 2025) the Ontario Court of Appeal considered criminal sentencing principles, here where a judge exceeds the Crown's sentencing recommendation:ISSUE 1 Exceeding the Crown’s position without notice
[7] At para. 52 of R. v. Nahanee, 2022 SCC 37, 474 D.L.R. (4th) 34, Moldaver J., writing for the majority, states that 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 but such an error in principle will justify appellate intervention only where it appears from the decision that such an error had an impact on the sentence. At para. 59 of Nahanee, Moldaver J. goes on to explain that, where the sentencing judge fails to provide notice and/or an opportunity for further submissions, three types of errors in principle warrant appellate intervention:1. if the failure to provide notice and/or further submissions impacts the sentence;
2. if the sentencing judge failed to provide reasons, or provided unclear or insufficient reasons, for imposing the harsher sentence; or
3. if the sentencing judge provided erroneous reasons for imposing the harsher sentence. . R. v. Ruthowsky
In R. v. Ruthowsky (Ont CA, 2024) the Ontario Court of Appeal considers the situation where the judge gives notice to the parties that they may exceeds the Crown's sought sentence:[152] As noted above, the trial judge imposed a 13-year sentence. The Crown at trial sought a sentence of 10-years imprisonment, and argued that the appropriate range fell between 8 and 15 years. After hearing submissions on sentence from the Crown and the appellant, the trial judge gave notice to the parties that he was considering imposing a sentence above that sought by the Crown, and offered the parties the opportunity to make further submissions.
[153] In providing notice to the parties, the trial judge explained the specific points that led him to have concerns that the sentence sought by the Crown was too low. These concerns included: (i) that the offences were so serious, the breaches of trust “so egregious and repugnant”, and the amount of money involved so large that they called out for a harsh denunciatory sentence; (ii) that the manner in which the Crown proposed that the sentences on some counts run consecutively or concurrently to address the totality principle would result in inappropriate sentences on some counts; and (iii) whether consideration should be given to increasing the period before the appellant would be eligible for parole, pursuant to s. 743.6 of the Criminal Code, in order to reflect the appropriate level of denunciation. The parties returned several days later and made additional sentencing submissions.
[154] I see no unfairness or error in how the trial judge approached exceeding the Crown’s position on sentence. The trial judge appropriately gave notice that he was considering exceeding the Crown’s position on sentence, explained the reasons that he was considering doing so, and offered the parties an opportunity to make further submissions on sentence. The notice given was consistent with the Supreme Court’s later decision in Nahanee, and with the earlier Ontario precedents of R. v. Hagen, 2011 ONCA 749, R. v. Gamble, 2017 ONCA 610, and R. v. R.O., 2017 ONCA 987, which the trial judge referred to in his reasons for sentence. The parties took the opportunity to make additional sentencing submissions a few days later, which the trial judge considered in the sentence he imposed.
[155] I am not persuaded that the language used by the trial judge in giving notice to the parties that he was considering exceeding the sentence proposed by the Crown and explaining his concerns showed any unfairness or predisposition. The trial judge was frank and direct in explaining the reasons that he was considering exceeding the Crown’s sentencing submission. However, nothing he said comes close to raising a reasonable apprehension of bias.
[156] I underline the importance of the chronology in coming to this conclusion. It was, of course, after verdict when the trial judge gave notice that he was considering exceeding the Crown’s position on sentence and explained his concerns. It was also after he had heard submissions from both the Crown and the appellant on the appropriate sentence. The offences the appellant was convicted of are very grave. That the trial judge emphasized the gravity of the offences when he explained why he was considering imposing a sentence in excess of that sought by the Crown does not give rise to unfairness or a reasonable apprehension of bias. The trial judge, quite appropriately, explained to the parties in clear language why he had concerns with the sentencing position advanced by the Crown. The heart of that concern was the gravity of the offences committed by the appellant and whether the sentence sought by the Crown was sufficient for purposes of denunciation. The purpose of this explanation by the trial judge was to assist the parties in making additional submissions on sentence, which the trial judge, quite appropriately, gave the parties an opportunity to provide.
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