|
Criminal - Sentencing - Collateral Consequences. R. v. D.B.
In R. v. D.B. (Ont CA, 2025) the Ontario Court of Appeal allows a criminal sentencing appeal, here where the main issue was family 'collateral consequences':[1] The appellant, D.B., appeals the four-year sentence imposed by the trial judge following his conviction for sexual assault under s. 271 of the Criminal Code, R.S.C. 1985, c. C-46. This appeal highlights the challenge of balancing the profound harm caused by sexual violence with the significant collateral consequences incarceration imposes on offenders and their families. The appellant, a youthful first-time adult offender, sexually assaulted a 16-year-old co-worker and friend in her home, causing her lasting trauma. The evidence at sentencing established that a penitentiary term was necessary to reflect the seriousness of the offence. However, such a sentence would also have severe collateral consequences for the appellant and his family. It would separate him from his spouse and their two children, eliminate the family’s sole source of income, and likely result in the loss of their home.
....
(1) The Principles Governing Collateral Consequences
[11] At the outset, I restate the settled principles governing collateral consequences which Justice Moldaver defined in R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, building on the Supreme Court’s earlier decision in R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739.
[12] First, collateral consequences humanize and individualize sentencing by accounting for its effects other than the criminal sanction itself: Pham, at para. 19, quoting R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (C.A.), at para. 158; see also Suter, at para. 48. These impacts can be severe. In Pham’s words, “[p]eople lose jobs; families are disrupted; sources of assistance disappear,” which “make[s] the rehabilitative path harder to travel,” hinders “future re-integration,” and can reduce the need for denunciation and deterrence: at para. 12 (quotation omitted); see also Suter, at para. 48 n.2. Likewise, Suter underscored that “a particular sentence [can] have a more significant impact on the offender because of his or her circumstances”: at para. 48. Suter thus affirmed cases which recognize the heightened impact of collateral consequences on people who already face marginalization and disadvantage, including due to financial insecurity, mental health challenges, and precarious immigration status: at para. 56 (citing cases).
[13] Second, considering collateral consequences is mandatory, not optional. As Suter explained, “relevant collateral consequences must be taken into account” because they “enable[] a judge to craft a proportionate sentence”: at paras. 46, 48 n.3. Suter adopted this rule because whether a sentence is proportional to the gravity of the offence and the degree of responsibility of the offender as s. 718.1 of the Criminal Code requires depends on its impact on the defendant in addition to its length. Since collateral consequences increase the impact on the defendant, they are integral to proportionality and failure to consider them may “render[] a given sentence unfit”: at para. 48; see also R. v. Hills, 2023 SCC 2, 477 D.L.R. (4th) 1, at paras. 135-36.
[14] Third, the law approaches collateral consequences generously, not restrictively. Suter defined them broadly to encompass “any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender,” including “physical, emotional, social, or financial consequences”: at para. 47 (quotation omitted). Suter also held that such consequences need not be unique or exceptional – they can also be “foreseeable” or “flow naturally from the conviction, sentence, or commission of the offence”: at para. 49 (emphasis in original). Thus, Suter and Pham directed courts to grapple with common and foreseeable consequences of the criminal process such as deportation, family separation, and the loss of work: Suter, at paras. 47, 49, 56; Pham, at paras. 12-13. Such “normal effects … can be mitigating” even if not uniquely harsh: R. v. Friesen, 2022 ABCA 147, 45 Alta. L.R. (7th) 236, at para. 43.
[15] Finally, Suter clarified that the inevitability exception to this generous approach is narrow. As Suter explained, this exception only applies “where the consequence is so directly linked to the nature of the offence as to be almost inevitable”: at para. 49 (quotation omitted). For example, Suter noted that “an injury resulting from an impaired driving offence (a foreseeable consequence of driving while impaired) may have less of an attenuating impact”: at para. 50. Because the exception only applies to self-inflicted injuries flowing from the commission of the crime itself, it does not cover consequences of the criminal justice’s response to the offence. Overextending the exception in that manner would negate Suter’s guidance that common and foreseeable consequences of conviction and sentence like family separation, the loss of employment, and deportation are relevant and must be considered.
....
[19] .... failing to meaningfully engage with the collateral consequences of family separation is an error in principle, and one that materially affected the sentence. The prospect of family separation requires sentencing judges to meaningfully consider its consequences, even for serious offences: Habib, at paras. 45-47; R. v. Simoes, 2014 ONCA 144, at para. 14, citing R. v. Middleton, 2009 SCC 21, [2009] 1 S.C.R. 674.
[20] As well, sentencing judges must do their best to consider family separation consequences with the information available to them. Evidence of these consequences does not have to meet an onerous specificity threshold to be considered or to justify a sentence reduction. That would impose unnecessary evidentiary burdens. For instance, detailed or expert evidence is typically not needed to prove that family separation would cause common well-known consequences, such as the adverse effects of separating parents from young children: Simoes, at para. 14; R. v. McDonald, 2016 NUCA 4, at para. 43. Thus, sentencing judges may accept as proven and should meaningfully consider any undisputed information concerning family separation consequences disclosed at trial, at sentencing, in the pre-sentence report or in the agreed facts. See Criminal Code, ss. 721, 724(1), 724(3). These sources will typically provide enough information. In the rare cases where a sentencing judge lacks sufficient information, they may ask the parties if they wish to call additional evidence.
[21] The evidence showed significant family separation consequences. The appellant was the sole provider for his partner and two children who lived with him (ages three and six months), and he supported an older child from a prior relationship. In the event of a penitentiary sentence, his partner, a stay-at-home parent, faced financial instability, forced relocation from the military housing, and single parenting. Finally, the pre-sentence report described the appellant as an active, nurturing father, yet the trial judge did not address the emotional toll of separating him from his children, especially his three-year-old daughter and six-month-old son. This was an error because separating parents from such very young children can have “incalculable adverse effects for both the [parent] offender and [the] children”: McDonald, at para. 43 (quotation omitted), cited approvingly in Suter, at para. 56.
[22] Second, while the trial judge noted the appellant’s job loss, she dismissed it as carrying “no weight.” This was also an error in principle because this consequence must be considered: Pham, at para. 12; R. v. Folino (2005), 2005 CanLII 40543 (ON CA), 77 O.R. (3d) 641 (C.A.), at para. 29. It is relevant because, as Chief Justice Brian Dickson explained, “[w]ork is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and … a contributory role in society,” as well as a “sense of identity, self-worth and emotional well-being”: Reference re Public Service Employee Relations Act (Alta.), 1987 CanLII 88 (SCC), [1987] 1 S.C.R. 313, at p. 368. Thus, losing employment frustrates rehabilitation and reintegration and can lessen the need for specific deterrence, especially for youthful first-time offenders like the appellant: Pham, at para. 12; R. v. McCormick (1979), 1979 CanLII 2958 (MB CA), 47 C.C.C. (2d) 224 (Man. C.A.), at pp. 230-231.
[23] The trial judge also did not consider the impact of employment consequences on housing, income, caregiving, or the defendant’s family. These broader effects must also be accounted for: R. v. Nikkanen (1999), 1999 CanLII 7339 (ON CA), 140 C.C.C. (3d) 423 (Ont. C.A.), at paras. 14-15, leave to appeal refused, [1999] S.C.C.A. No. 624.
[24] These consequences merited weight despite the trial judge’s conclusion that they were not unique and were almost inevitable. As Justice Moldaver explained in Suter, common and foreseeable consequences of conviction and sentence must be considered to respect proportionality. Further, Suter’s narrow inevitability exception did not apply because the trial judge found that the employment consequences flowed from the conviction rather than the offence itself.
[25] Overlooking these consequences affected the sentencing calculus. Although denunciation and deterrence are paramount given the offence’s seriousness and A.H.’s age, proportionality requires considering collateral consequences that increase the sentence’s impact. The appellant’s lack of criminal record, consistent employment, and prosocial life suggest strong rehabilitative potential. The significant hardship to his family warranted moderating the sentence length, and the failure to weigh these factors materially affected the sentence.
....
(3) Collateral Consequences
[37] Incarceration severely impacts the appellant’s family. As their sole provider, his loss of military employment and housing, causes significant financial instability and housing insecurity for his young family. Separation from his three children, whom he actively supports, increases the sentence’s severity and harms innocent third parties. These consequences justify a reduced sentence to minimize family disruption: Habib, at para. 45.
[38] Further, the evidence at sentencing demonstrated that the appellant experienced significant mental health challenges, including anxiety and depression, and a past psychotic episode. Mental health challenges are relevant collateral consequences because they increase the severity of incarceration and intensify the impact of other collateral consequences, which favours a sentence reduction to achieve proportionality, promote rehabilitation, and protect the public in the long-term: R. v. Wallace (1973), 1973 CanLII 1434 (ON CA), 11 C.C.C. (2d) 95 (Ont. C.A.), at p. 100, approved of in Hills, at para. 135; see also Folino, at para. 29, and McDonald, at paras. 33, 41-44, both approved of in Suter, at para. 56. These challenges are relevant even if they did not contribute to the offending conduct because collateral consequences, unlike mitigating factors, need not diminish moral blameworthiness: Suter, at para. 48; R. v. Shahnawaz (2000), 2000 CanLII 16973 (ON CA), 51 O.R. (3d) 29 (C.A.), at para. 34, leave to appeal refused, [2001] S.C.C.A. No. 24. Thus, the evidence that the appellant’s mental health challenges increased the impact of incarceration, family separation, and the loss of employment and housing on him should be accounted for. . R. v. Mills
In R. v. Mills (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal from a guilty plea for "failing to remain at the scene of a fatal traffic accident" [CCC s.320.16(3)].
Here the court reviews some facts and law on the immigration 'collateral consequences' of criminal convictions:[9] On March 26, 2021, the appellant re-elected to be tried in the Ontario Court of Justice and entered a plea of guilty on the fail to stop charge. The trial judge conducted a plea inquiry, after which she stated that she was “satisfied this is an informed and voluntary plea”. However, the appellant’s trial counsel did not advise the trial judge that the appellant was a permanent resident of Canada, and the trial judge’s plea inquiry did not include any questions about the appellant’s immigration status, or his awareness of the collateral immigration consequences of his plea and/or of the sentence that he might receive.
(2) The immigration consequences of the appellant’s guilty plea
[10] The appellant, who was 38 years old at the time of sentencing, was born in Jamaica and came to Canada when he was 13 years old. He was granted permanent resident status but has never obtained Canadian citizenship. His wife is also a Canadian permanent resident. Their children were born in Canada and are Canadian citizens.
[11] Section 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“the IRPA”), deems permanent residents to be “inadmissible on grounds of serious criminality” if they are convicted in Canada of an offence “punishable by a maximum term of imprisonment of at least 10 years”, or if they actually receive a sentence of “imprisonment of more than six months”.
[12] The offence of failing to stop after an accident resulting in death in s. 320.16(3) of the Criminal Code, to which the appellant pleaded guilty, carries a maximum sentence of life imprisonment: Criminal Code, s. 320.21. Because this maximum sentence is greater than ten years’ imprisonment, a conviction for this offence makes the appellant inadmissible under s. 36(1) of the IRPA, regardless of what sentence he actually receives.
[13] However, the appellant’s actual sentence had important consequences for his right to appeal against a removal order on humanitarian or compassionate grounds: see e.g., Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289, at paras. 6-7. In summary, if the appellant had received a sentence of less than six months’ actual imprisonment – including a conditional sentence of any length – he would have been able to appeal a removal order to the Immigration Appeal Division pursuant to s. 63(3) of the IRPA. However, if he received a custodial sentence of six months or more, he would lose the right to appeal: IRPA, s. 64(2). . R. v. Casarsa
In R. v. Casarsa (Ont CA, 2023) the Court of Appeal considered just what 'fresh evidence' is, when contrasted with 'collateral consequences' as they bear on criminal sentencing:[13] In support of his application for leave to appeal his sentence, Mr. Casarsa seeks to admit fresh evidence, namely, that as a result of his convictions he lost his employment. He argues that this is a material change because evidence was presented at the trial, and accepted by the trial judge, that his job would still be there after he served his sentence.
[14] We are not satisfied that this evidence qualifies for admission as “fresh evidence”. In order to be admissible as fresh evidence it must be “such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result”: R. v. J.A.A., 2011 SCC 17, [2011] 1 S.C.R. 628, at para. 7, citing Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. In our view, proof of this collateral consequence – Mr. Casarsa’s job loss – could not reasonably have affected the result. As the Crown points out, the trial judge treated Mr. Casara’s work history as a “significant” mitigating circumstance and treated the evidence before him that Mr. Casarsa’s employment was secure as a mitigating factor. Removing evidence that his job was secure and replacing it with proof that he in fact lost his job would not have made a material difference in the sentence imposed, particularly in view of his evidence that he has now secured part-time employment. Put simply, one mitigating collateral fact would have been replaced by another mitigating collateral fact of comparable impact. . R. v. El-Azrak
In R. v. El-Azrak (Ont CA, 2023) the Court of Appeal allowed a sentence appeal on grounds of improper assessment of 'collateral consequences', here chronic medical conditions:[143] In my view, the reasons demonstrate that the trial judge failed to take into account that, in some circumstances, a sentence may be reduced where there is evidence suggesting that a term of imprisonment would be experienced by an offender in a disproportionate manner because of collateral circumstances. This is a relevant part of the proportionality analysis. As this court noted in R. v. Shahnawaz (2000), 2000 CanLII 16973 (ON CA), 51 O.R. (3d) 29 (C.A.), at para. 34, leave to appeal refused, [2001] 1 S.C.R. xvii:What we are left with as a relevant factor for consideration is the evidence, accepted by the trial judge, that imprisonment had and would probably continue to have an “extreme effect” on Mr. Shahnawaz. Given this fact, it becomes necessary to adjust the sentence imposed on this particular offender so as to ensure that it does not become disproportionate to his crime. [144] Undoubtedly, a collateral consequence can arise from the commission of an offence, the conviction for an offence or the sentence imposed for an offence: R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 47. Sometimes adjusting a sentence downward is entirely necessary to ensure that a sentence does not become disproportionate to the crime, because the offender is not like other offenders in the sense that they will not experience incarceration in the same way. In other words, although only arising in rare and extreme circumstances, if an offender is going to experience custody in a more severe way, then a sentence can become disproportionate to the offender’s offending behaviour.
[145] This also comes back to the principle of parity, in the sense that like offenders should be treated alike, but from time to time, collateral consequences will mean that “an offender is no longer ‘like’ the others,” something that can render the sentence unfit: Suter, at para. 48.
[146] Of course, in most cases, there will be reason to conclude that an offender’s medical condition can be properly treated in custody in accordance with the statutory obligations of correctional authorities, such that the offender will not experience the sentence in a disproportionate way: R. v. Hanse, 2022 ONCA 843, at para. 52; R. v. R.C., 2015 ONCA 313, at para. 8; R. v. H.S., 2014 ONCA 323, 308 C.C.C. (3d) 27, at paras. 37-38; and R. v. R.L., 2013 ONCA 504, at paras. 38-40.
[147] However, in my view, the trial judge erred by failing to take these sentencing principles into account and overlooking the severe negative effect that this sentence would have on the appellant. The appellant’s and her daughter’s disease is extraordinary. The appellant’s condition is very advanced. She has lost sight in one eye and has a tumour developing in the other. She has tumours throughout her body. She works with a medical team and time is critically of the essence.
[148] She has always been the sole caregiver for her daughter (and son). She is the one who has managed her daughter’s disease to date and reacts when action is needed. While the trial judge is right that she should have thought about that when she committed the offences, the fact remains that we are here now. Two Canadian citizens may well have to leave Canada to live with their father while their mother is incarcerated. In this case, it is not just about a child leaving the country, but a child being pulled away from the security of her medical team and from the possibility of receiving quick treatment, which she will require as issues inevitably arise. It also means that the appellant, the child’s mother, will not only have to live with the anxiety of her own disease while incarcerated, but she will also have to live with the knowledge that her child, who is in so much need, has had her access to urgent medical care jeopardized. It also means, of course, that the appellant will see her children infrequently.
[149] These are indeed extraordinary collateral circumstances, the likes of which are extremely severe, if not unique. They simply were not dealt with in the sentencing reasons. . R. v. L.C.
In R. v. L.C. (Ont CA, 2022) the Court of Appeal considered 'collateral consequences' that may bear on criminal sentencing:[20] Collateral consequences that may be considered at sentencing include any consequences arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender: R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 47. The Supreme Court in Suter, at para. 48, explained the relevance of collateral consequences and the difference between collateral consequences and mitigating and aggravating factors as follows:Though collateral consequences are not necessarily “aggravating” or “mitigating” factors under s. 718.2(a) of the Criminal Code — as they do not relate to the gravity of the offence or the level of responsibility of the offender — they nevertheless speak to the “personal circumstances of the offender” (Pham, at para. 11). The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity: ibid.; s. 718.2 (b) of the Criminal Code. The question is not whether collateral consequences diminish the offender’s moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances. Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer “like” the others, rendering a given sentence unfit. [Citations in original.] [Footnotes omitted.] [21] In specific cases, mitigating factors, collateral consequences, or other attenuating circumstances relating to the offence or offender may warrant a sentence below the usual range. Similarly, aggravating factors in a particular case may warrant a sentence above the usual range: Suter, at paras. 27, 90. “[T]he weight to be given to collateral consequences varies from case to case and should be determined having regard to the type and seriousness of the offence”: Pham, at para. 12. The attenuating effect of relevant collateral consequences on the sentence imposed will differ depending on the circumstances. In some cases, it may be that the collateral consequence will have no impact on the sentence imposed: Suter, at para. 48, footnote 3. The weight to be given to relevant mitigating factors, aggravating factors, and collateral consequences in crafting a fit sentence is within the discretion of the trial judge: Suter, at para. 14; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 43.
[22] To be considered at sentencing, where they are raised as attenuating circumstances to mitigate or reduce a sentence, relevant collateral consequences need not be “foreseeable” or “flow naturally from the conviction, sentence, or commission of the offence” (emphasis in original), nor must they emanate from state misconduct, though they must relate to the offence and the circumstances of the offender: Suter, at paras. 49, 56.
[23] The appellant relies on R. v. Stanberry, 2015 QCCQ 1097, 18 C.R. (7th) 87, at paras. 18-20, for the proposition that sentencing courts can consider not only that a parent will be separated from their children, but that the children will be separated from the parent and (where applicable) each other, as collateral consequences that could magnify the severity of the sentence for an offender. Stanberry has been applied or cited favourably in Suter, at para. 56; R. v. McDonald, 2016 NUCA 4, at para. 43; R. v. Kaneza, 2015 ABQB 658, at paras. 43-48, aff’d, 2016 ABCA 411, at paras. 7-8; and R. v. Zhou, 2016 ONSC 3233, at paras 9-14. This court also has previously accepted that family separation may be a relevant collateral consequence: see e.g., R. v. Kanthasamy, 2021 ONCA 32, at paras. 7-9.
|
