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Criminal - Sentencing - Family Consequences. R. v. Habib
In R. v. Habib (Ont CA, 2024) the Ontario Court of Appeal consider family consequences as a criminal sentencing factor:(3) The Sentencing Judge Overlooked Family Consequences
[41] The appellant next argues that the sentencing judge overlooked the family separation consequences that imprisoning him would cause to both him and his family. I agree. The sentencing judge did not address these consequences, which the law required him to prevent and mitigate as much as possible. These reasons provide guidance on how to address these consequences in cases where, as here, the victim of the crime is not a family member of the defendant.
[42] As recognized in R. v. Spencer (2004), 2004 CanLII 5550 (ON CA), 72 O.R. (3d) 47 (C.A.), at para. 46, leave to appeal refused, [2005] S.C.C.A. No. 4, it is an unfortunate reality that sentencing defendants to prison often harms their families. Family members are deprived of the defendant’s love and care and suffer the emotional pain of separation. They must often assume the added burdens of the breadwinning and caregiving responsibilities that the defendant formerly performed. Further, they may suffer financial hardship, educational deprivation, and even the loss of the family residence. See 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; R. c. G.G., 2023 QCCA 305, 87 C.R. (7th) 383, at paras. 24, 33, 37 and 53. As well, being unable to care and provide for their families increases the severity of incarceration for defendants. See R. v. Collins, 2011 ONCA 182, 104 O.R. (3d) 241, at para. 41.
[43] The courts have been careful not to let these consequences overwhelm the other principles of sentencing. See R. v. Dent, 2023 ONCA 460, 167 O.R. (3d) 161, at para. 124. As emphasized in Spencer, these consequences are not an excuse to overlook the harm that the defendant’s criminal conduct caused victims of crime, or the importance of protecting those victims and society, or the need for denunciation and deterrence. See at paras. 46-47. Likewise, family separation may have a reduced impact on the sentence if its effects on defendants and their families are less strong. See R. v. L.C., 2022 ONCA 863, 421 C.C.C. (3d) 227, at paras. 21 and 25; Dent, at para. 125. Further, these consequences cannot justify imposing a disproportionate sentence. See L.C., at para. 24. Thus, this court has sometimes imposed or affirmed significant prison sentences to respect the other principles of sentencing even after accounting for family separation consequences, as in Spencer, L.C., and Dent.
[44] But as Spencer ruled, sentencing judges must “preserve the family as much as possible” within these limits. As that case explained, if incarceration is necessary, sentencing judges must give serious and sufficient consideration to family separation consequences in “determining the length of [the] prison term.” See at para. 47. That same careful consideration is also needed when determining whether to incarcerate the defendant. See R. v. Nguyen (1998), 1998 CanLII 6126 (BC CA), 113 B.C.A.C. 56, at paras. 5-6.
[45] Thus, depending on the facts, family separation consequences may justify a sentence adjustment – even a significant one – or a departure from the range. See L.C., at para. 21; Collins, at paras. 39-43; and R. v. Forsythe, [1976] O.J. No. 1026 (C.A.), at paras. 5-6. This is true even for grave offences that require deterrence and denunciation, as in Spencer, where the court considered that the defendant had “much to offer her children” in setting the sentence.[5] See at paras. 48-49; see also R. v. Wellington (1999), 1999 CanLII 3054 (ON CA), 43 O.R. (3d) 534 (C.A.), at pp. 538-540; Collins, at paras. 41-42. Failure to consider these consequences is an error in principle that usually impacts the sentence and justifies appellate intervention. See R. v. Simoes, 2014 ONCA 144, at para. 14; Nguyen, at para. 6.
[46] Courts follow this approach to protect both the defendant’s family members and society. While defendants and not the courts are to be blamed for the adverse consequences that those family members may suffer (R. c. Gauthier (1994), 64 Q.A.C. 306 (C.A.), at para. 30), those family members are still innocent. They do not deserve to suffer for the defendant’s crimes. And as explained in Spencer, the restraint principle, which Parliament has directed courts to apply, requires courts to prevent and mitigate these adverse consequences as much as possible. See at para. 47; see also Criminal Code, ss. 718.2(d)-(e); Proulx, at paras. 16-17. This benefits society because families are its foundational fabric. See R. v. Clayton (1982), 1982 CanLII 3860 (ON CA), 69 C.C.C. (2d) 81 (Ont. C.A.), at p. 83. Our society depends on families to raise and nurture children, transmit knowledge, skills, and values from generation to generation, and provide love, care, emotional, economic, and social support to their members. See Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813, at p. 848. Courts thus try to minimize the impact of sentencing on defendants’ families because, as Spencer recognized, interfering with this foundational social institution, even for just reasons, can endanger community safety and society’s well-being. See at para. 47.
[47] Courts also take this approach to account for Parliament’s direction to foster rehabilitation and consider mitigating factors and collateral consequences. See Criminal Code, ss. 718(d), 718.2(a)-(b); R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at paras. 11-12. Caring and providing for family members is a mitigating factor that shows good character and can increase rehabilitative prospects. See R. v. Ali, 2022 ONCA 736, 164 O.R. (3d) 81, at paras. 41-42. Further, the pain of being unable to care and provide for family members while incarcerated is a collateral consequence that increases the severity of incarceration and can jeopardize rehabilitation. See L.C., at paras. 23-24; R. v. Szola (1977), 1977 CanLII 2041 (ON CA), 33 C.C.C. (2d) 572 (Ont. C.A.), at pp. 574-575. Courts must thus assess “all the relevant circumstances,” including the mitigating role of caring and providing for family members and family separation collateral consequences, to determine a proportionate sentence. See R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 46 (emphasis in original); see also R. v. Bascoe, 2023 ONCJ 206, at para. 36. They cannot determine a proportionate sentence without considering family separation consequences.
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