In R. v. Beardy, 2014 MBCA 23, February 18, 2014, the accused pleaded guilty to the offences of attempted robbery and aggravated assault.  He stabbed a person (twice) at a gas station.

At the sentence hearing, the Crown requested that a period of four years imprisonment be imposed. The offender “recommended” that a period of two and one-half years imprisonment be imposed.  The sentencing judge imposed a period of six years imprisonment.  The accused appealed.

The Manitoba Court of Appeal reduced the sentence imposed to four years imprisonment. The Court of Appeal held that “that the sentencing judge erred by failing to inform counsel of his concerns with respect to the range suggested by the Crown and by not providing counsel the opportunity to make further submissions to address his concerns.” The Court of Appeal recommended that the following procedure should be utilized when a trial judge thinks about “jumping” the Crown’s sentence recommendation (at paragraph 6):

For a guilty plea to be valid, an accused must understand the nature and consequences of the plea prior to entering it (see s. 606(1.1)(b)(ii) of the Criminal Code).  This includes an understanding of the Crown’s position on sentence.  Typically, the Crown’s position will represent the upper limit of any sentence an accused can expect to receive from the sentencing judge.  While the Crown’s position cannot bind the discretion of the sentencing judge, judges should be slow to go over the recommended upper limit of the sentence or “jump” the sentence without first giving counsel an opportunity to address any concerns.  In the same way that a sentencing judge, who is thinking of “jumping” a joint submission, should inform counsel of his/her concerns and provide them with an opportunity to present further submissions or authority, so should a judge who is contemplating sentencing an accused to a sentence that is much harsher than what the Crown is recommending (see R. v. Hagen, 2011 ONCA 749 at paras. 4-5 (QL); R. v. Menary (W.), 2012 ONCA 706 at paras. 3-4, 298 O.A.C. 108; and R. v. Poorsarwar, 2012 ONCA 799 at para. 4 (QL)).  It is the fair thing to do.