Collateral Consequences of Proceedings as a Sentencing Factor

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2019. (Rev. # 96185)

General Principles

See also: Sentencing Factors Relating to the Offender

Relevant collateral consequences include "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."[1]

They do not go to considerations of aggravating or mitigating factors, nor the gravity of the offence or moral blameworthiness of the offender.[2]

The analysis of collateral consequences is upon "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".[3]

Personal Circumstances of Offender

Collateral consequences upon the offender, including being victim of vigilante justice, forms part of the offender's personal circumstances and should be taken into account on sentencing.[4] They are relevant to sentencing as part of the considerations for individiualization and parity.[5]

When It can be Mitigating

The consequence does not need to "emanate from state misconduct" for it to be mitigating.[6]

After mitigating effects arising from collateral consequences are applied the sentence must still conform with the principle of proportionality.[7]

Stigma of the Offence

Stigma arising from the offence cannot be used as a mitigating factor when it is in line with what is expected from someone facing the same charges.[8]

Civil Liability

An offender who is or is likely to face civil liability can be a factor to take into account. It should not however be given much weight. It can be treated as contributing to deterrence.[9]

  1. ↑ R v Suter, 2018 SCC 34 (CanLII), [2018] 2 SCR 496, per Moldaver J (6:1), at para 47
  2. ↑ Suter, ibid., at para 48 ("...collateral consequences are not necessarily "aggravating" or "mitigating" factors under s. 718.2(a) of the Criminal Code...The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious...")
  3. ↑ Suter, ibid., at para 48
  4. ↑ Suter, supra, at paras 45 to 59
    R v Pham, 2013 SCC 15 (CanLII), [2013] 1 SCR 739, per Wagner J, , at para 11
  5. ↑ Suter, supra, at para 48 ("The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity")
  6. ↑ Suter, supra, at para 56
  7. ↑ Suter, supra, at para 56
  8. ↑ R v HS, 2014 ONCA 323 (CanLII), per Epstein JA
  9. ↑ R v Stone, 2001 BCCA 728 (CanLII), per J, at para 34 ("Where, as here, the offender is likely to face a substantial civil obligation compared to his circumstances, and he is not otherwise financially impecunious, his civil liability is a factor that should be taken into account in sentencing. In my opinion, it is not a factor to be given as much weight as either denunciation or general deterrence. But it is of some significance, particularly as awareness of civil consequences should in itself be a deterrent.")

Effect on Immigration

See also: Immigration Consequences from a Conviction

Section 64 of the Immigration and Refugee Protection Act states:

No appeal for inadmissibility

64 (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, sanctions, serious criminality or organized criminality.

Serious criminality

(2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least six months or that is described in paragraph 36(1)(b) or (c).

Misrepresentation

(3) No appeal may be made under subsection 63(1) in respect of a decision that was based on a finding of inadmissibility on the ground of misrepresentation, unless the foreign national in question is the sponsor’s spouse, common-law partner or child.

2001, c. 27, s. 64; 2013, c. 16, s. 24; 2023, c. 19, s. 11.

– IRPA

Risk of Deportation as Factor

The risk of deportation can be a factor to consider sentencing. [1] It must be weighed and considered with all other factors and circumstances of the case.[2] However, it should not bring the sentence out of the appropriate range.[3] However, the factor is a discretionary one.[4]

Immigration consequences are not aggravating or mitigating factors since they do not inform the gravity of the offence or responsibility of the offender. However, it is relevant to "individualization, parity, and rehabilitation."[5]

Suggested Approach

The preferred approach is one where the sentencing judge must first determine a fit and proper sentence and only then consider immigration consequences.[6]

The impact on the ability to get a VISA to places like the US may influence the court to consider an absolute discharge over a conditional discharge due to the treatment of probation to immigration.[7]

The effect of an offender's immigration status on the likelihood of day parole is not a factor in sentence.[8]

Sentence Must Remain in the Appropriate Range

The risk of deportation is a "legitimate consideration for a sentencing judge" however "cannot be used to justify an otherwise unfit sentence" even where the offender has "virtually no connection" with the other country.[9] The sentencing approach must not create a separate sentencing scheme for those at risk of deportation.[10]

A difference of one day custody in sentence will usually have "inconsequential" impact on denunciation, retribution, or deterrence, however, may still have "enormous" consequences on immigration status, in which case a reduction would be warranted.[11]

Children

The judge may consider the impact of deportation on the offender's dependent children as mitigation.[12]

Counsel's Failure to Raise Immigration Status

A failure of counsel to raise the issue of immigration effect can by grounds of appellate intervention.[13]

  1. ↑ R v Pham, 2013 SCC 15 (CanLII), [2013] 1 SCR 739, per Wagner J (7:0)
    R v Hamilton, 2004 CanLII 5549 (ON CA), 72 OR (3d) 1, per Doherty JA (3:0), at paras 156, 159, and 186
    R v Barkza, 2011 ABCA 273 (CanLII), 530 WAC 333, per Rowbotham JA (3:0)
    R v Dhura, 2011 ABCA 165 (CanLII), 505 AR 248, per Watson JA (3:0)
    R v Koc, 2008 NLTD 97 (CanLII), [2008] NJ No 161 (N.L.S.C.T.D.), per Goulding J
    R v Melo, 1975 CanLII 1299 (ON CA), 26 CCC (2d) 510, per Arnup JA, at p. 516 (Ont. C.A.)
  2. ↑ R v BRC, [2010] OJ No 3571(*no CanLII links) at 6
    R v Melo, 1975 CanLII 1299 (ON CA), 26 CCC (2d) 510, per Arnup JA (3:0), at p. 516
    Pham, supra, at paras 20 to 22
  3. ↑ R v Morgan, 2008 NWTCA 12 (CanLII), 239 CCC (3d) 187, per curiam
    R v Belenky, 2010 ABCA 98 (CanLII), 253 CCC (3d) 344, per McDonald JA (3:0), at para 20 ("the collateral consequence of deportation can be given at most very limited weight. It cannot by itself remove a sentence from what would otherwise be the appropriate range. At most it can serve to move the sentence a small amount, nothing more.")
  4. ↑ Pham, supra
  5. ↑ Pham, supra
  6. ↑ R v Lopez-Orellana, 2018 ABCA 35 (CanLII), per curiam (3:0) , at para 24
  7. ↑ R v Dzabic, 2008 CanLII 53860 (ONSC), per DiTomaso J
  8. ↑ R v Razmara, 2012 ONCA 13 (CanLII), per curiam (3:0)
  9. ↑ R v Spencer, 2015 NSCA 108 (CanLII), 367 NSR (2d) 246, per MacDonald CJ, at para 8
    Pham, supra, at para 16 ("These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation.")
  10. ↑ Pham, supra, at para 16 ("Moreover, it must not lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options where deportation is a risk.")
  11. ↑ R v Kanthasamy, 2005 BCCA 135 (CanLII), 195 CCC (3d) 182, per Donald JA (3:0), at para 15
  12. ↑ R v Gaurino, 2017 ONSC 4174 (CanLII), per Warkentin J
    R v Jiang, 2017 BCPC 111 (CanLII), per Rideout J
    R v Gomez, 2017 BCPC 7 (CanLII), per Rideout J
  13. ↑ Pham, supra, at para 24
    R v Tmenov, 2017 ONCA 454 (CanLII), per curiam (3:0)
    R v Jamieson, 2011 NSCA 122 (CanLII), 983 APR 392, per Saunders JA

Effect on Family and Others

The effect of incarceration upon the accused family may sometimes be a factor.[1]

The impact on family cannot override other factors.[2]

  1. ↑ R v Schmitt, 2014 ABCA 105 (CanLII), per curiam (3:0)
  2. ↑ Schmitt, ibid.

Victimization of Accused During Proceedings

An incarcerated offender who is attacked by fellow inmates can be taken as a collateral factor.[1]

Other Remedies

An accused who suffers harsh treatment while in remand, including being victimized, may have remedy under s. 24(1) of the Charter of Rights and Freedoms.[2]

Examples — Vigilante Justice

Judges must avoid giving "too much weight to vigilante violence" at sentencing or else risk giving undue legitimacy to it in the judicial process.[3] Such violence should only be considered to a "limited extent."[4]

  1. ↑ R v Suter, 2018 SCC 34 (CanLII), [2018] 2 SCR 496, per Moldaver J (6:1), at para 51
    R v MacFarlane, 2012 ONCA 82 (CanLII), 288 OAC 114, per curiam, at para 3
  2. ↑ R v Summers, 2014 SCC 26 (CanLII), [2014] 1 SCR 575, per Karakatsanis J, at para 73("individuals who have suffered particularly harsh treatments, such as assaults in detention, can often look to other remedies, including under s 24(1) of the Charter")
  3. ↑ Suter, supra, at para 58
  4. ↑ Sutder, supra, at para 59

See Also

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