A sentencing judge must not depart from the agreed or negotiated factual basis upon which guilty pleas have been entered to find aggravating features disavowed by the Crown. Three constraints apply: (1) it is unfair to the defendant where defence counsel has no opportunity to contest the issue; (2) a finding beyond reasonable doubt is not open in the absence of cross-examination where the fact is contested; (3) departure effectively upsets the agreed basis of the guilty pleas. It must be a rare case in which a judge will be entitled to question the basis upon which the Crown has decided to accept pleas of guilty.
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