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Criminal - Sentencing - Collateral Consequences. 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.
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