View source for Collateral Consequences of Proceedings as a Sentencing Factor

[[fr:La_position_de_confiance_comme_facteur_de_détermination_de_la_peine]]
{{Currency2|January|2019}}{{LevelZero}}{{HeaderPrinciples}}
==General Principles==
{{seealso|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."<ref>
{{CanLIIRP|Suter|hsrlt|2018 SCC 34 (CanLII)|[2018] 2 SCR 496}}{{perSCC-H|Moldaver J}} (6:1){{atL|hsrlt|47}}<Br>
</ref>

They ''do not'' go to considerations of aggravating or mitigating factors, nor the gravity of the offence or moral blameworthiness of the offender.<Ref>
{{ibid1|Suter}}{{atL|hsrlt|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...")
</ref>

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".<Ref>
{{ibid1|Suter}}{{atL|hsrlt|48}}
</ref>

; 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.<ref>
{{supra1|Suter}}{{atsL|hsrlt|45| to 59}}<Br>
{{CanLIIRP|Pham|fwhz1|2013 SCC 15 (CanLII)|[2013] 1 SCR 739}}{{perSCC|Wagner J}}, {{atL|fwhz1|11}}
</ref>
They are relevant to sentencing as part of the considerations for individiualization and parity.<ref>
{{supra1|Suter}}{{atL|hsrlt|48}} ("The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity")
</ref>

; When It can be Mitigating
The consequence does not need to "emanate from state misconduct" for it to be mitigating.<ref>
{{supra1|Suter}}{{atL|hsrlt|56}}<br>
</ref>

After mitigating effects arising from collateral consequences are applied the sentence must still conform with the principle of proportionality.<ref>
{{supra1|Suter}}{{atL|hsrlt|56}}<br>
</ref>

; 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.<REf>
{{CanLIIR-S|HS|g6mkb|2014 ONCA 323 (CanLII)}}{{perONCA|Epstein JA}}
</ref>

; 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.<Ref>
{{CanLIIR|Stone|4z2g|2001 BCCA 728 (CanLII)}}{{perBCCA| J}}{{atL|4z2g|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.")
</ref>

{{reflist|2}}

==Effect on Immigration==
{{seealso|Immigration Consequences from a Conviction}}
Section 64 of the Immigration and Refugee Protection Act states:
{{quotation1|
; 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.
| [http://canlii.ca/t/7vwq#sec64 IRPA]
}}

; Risk of Deportation as Factor
The risk of deportation can be a factor to consider sentencing. <ref>
{{CanLIIRP|Pham|fwhz1|2013 SCC 15 (CanLII)|[2013] 1 SCR 739}}{{perSCC|Wagner J}} (7:0)<br>
{{CanLIIRP|Hamilton|1hmc9|2004 CanLII 5549 (ON CA)|72 OR (3d) 1}}{{perONCA-H|Doherty JA}} (3:0){{atsL|1hmc9|156|}}, {{atsL-np|1hmc9|159|}}, and {{atsL-np|1hmc9|186|}}<br>
{{CanLIIRP|Barkza|fn834|2011 ABCA 273 (CanLII)|530 WAC 333}}{{perABCA|Rowbotham JA}} (3:0)<br>
{{CanLIIRP|Dhura|flp0l|2011 ABCA 165 (CanLII)|505 AR 248}}{{perABCA|Watson JA}} (3:0)<br>
{{CanLIIRP|Koc|1x3vx|2008 NLTD 97 (CanLII)|[2008] NJ No 161 (N.L.S.C.T.D.)}}{{perNLSC|Goulding J}}<br>
{{CanLIIRP|Melo|hv14t|1975 CanLII 1299 (ON CA)|26 CCC (2d) 510}}{{perONCA-H|Arnup JA}}{{atp|516}} (Ont. C.A.)<br>
</ref> 
It must be weighed and considered with all other factors and circumstances of the case.<ref>
{{CanLIIR-N|BRC|, [2010] OJ No 3571}} at 6<br>
{{CanLIIRP|Melo|hv14t|1975 CanLII 1299 (ON CA)|26 CCC (2d) 510}}{{perONCA-H|Arnup JA}} (3:0){{atp|516}}<Br>
{{supra1|Pham}}{{atsL|fwhz1|20| to 22}}<br>
</ref> 
However, it should not bring the sentence out of the appropriate range.<ref>
{{CanLIIRP|Morgan|21xb5|2008 NWTCA 12 (CanLII)|239 CCC (3d) 187}}{{TheCourt}}<br>
{{CanLIIRP|Belenky|28w7c|2010 ABCA 98 (CanLII)|253 CCC (3d) 344}}{{perABCA|McDonald JA}} (3:0){{atL|28w7c|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.") <br>
</ref> 
However, the factor is a discretionary one.<ref>
{{supra1|Pham}}
</ref>

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."<ref>
{{supra1|Pham}}
</ref>

; 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.<ref>
{{CanLIIRx|Lopez-Orellana|hq2nn|2018 ABCA 35 (CanLII)}}{{TheCourtABCA}} (3:0) {{atL|hq2nn|24}}
</ref>

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.<ref>
{{CanLIIRx|Dzabic|218bd|2008 CanLII 53860 (ONSC)}}{{perONSC|DiTomaso J}}</ref>

The effect of an offender's immigration status on the likelihood of day parole is not a factor in sentence.<ref>
{{CanLIIRx|Razmara|fpkgt|2012 ONCA 13 (CanLII)}}{{TheCourtONCA}} (3:0)</ref>

; 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.<ref>
{{CanLIIRP|Spencer|gmbhn|2015 NSCA 108 (CanLII)|367 NSR (2d) 246}}{{perNSCA|MacDonald CJ}}{{atL|gmbhn|8}}<br>
{{supra1|Pham}}{{atL|fwhz1|16}} ("These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation.")
</ref>
The sentencing approach must not create a separate sentencing scheme for those at risk of deportation.<ref>
{{supra1|Pham}}{{atL|fwhz1|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.")
</ref>

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.<ref>
{{CanLIIRP|Kanthasamy|1jxhw|2005 BCCA 135 (CanLII)|195 CCC (3d) 182}}{{perBCCA|Donald JA}} (3:0){{atL|1jxhw|15}}<br>
</ref>

; Children
The judge may consider the impact of deportation on the offender's dependent children as mitigation.<ref>
{{CanLIIRx|Gaurino|h4qdv|2017 ONSC 4174 (CanLII)}}{{perONSC|Warkentin J}}<br>
{{CanLIIRx|Jiang|h387d|2017 BCPC 111 (CanLII)}}{{perBCPC|Rideout J}}<br>
{{CanLIIRx|Gomez|gx409|2017 BCPC 7 (CanLII)}}{{perBCPC|Rideout J}} <br>
</ref>

; Counsel's Failure to Raise Immigration Status
A failure of counsel to raise the issue of immigration effect can by grounds of appellate intervention.<ref>
{{supra1|Pham}}{{atL|fwhz1|24}}<br>
{{CanLIIRx|Tmenov|h433s|2017 ONCA 454 (CanLII)}}{{TheCourtONCA}} (3:0)<br>
{{CanLIIRP|Jamieson|fpf0n|2011 NSCA 122 (CanLII)|983 APR 392}}{{perNSCA|Saunders JA}}<br>
</ref>

{{reflist|2}}

==Effect on Family and Others==
The effect of incarceration upon the accused family may sometimes be a factor.<ref>
{{CanLIIRx|Schmitt|g65j1|2014 ABCA 105 (CanLII)}}{{TheCourtABCA}} (3:0)
</ref>

The impact on family cannot override other factors.<ref>
{{ibid1|Schmitt}}<br>
</ref>

{{reflist|2}}

===Victimization of Accused During Proceedings===
An incarcerated offender who is attacked by fellow inmates can be taken as a collateral factor.<ref>
{{CanLIIRP|Suter|hsrlt|2018 SCC 34 (CanLII)|[2018] 2 SCR 496}}{{perSCC-H|Moldaver J}} (6:1){{atL|hsrlt|51}}<br>
{{CanLIIRP|MacFarlane|fpvx8|2012 ONCA 82 (CanLII)|288 OAC 114}}{{TheCourtONCA}}{{atL|fpvx8|3}}<br>
</ref>

; Other Remedies 
An accused who suffers harsh treatment while in remand, including being victimized, may have remedy under s. 24(1){{CCRF}}.<ref>
{{CanLIIRP|Summers|g6h8n|2014 SCC 26 (CanLII)|[2014] 1 SCR 575}}{{perSCC|Karakatsanis J}}{{atL|g6h8n|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")
</ref>

; 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.<ref>
{{supra1|Suter}}{{atL|hsrlt|58}}<Br>
</ref> 
Such violence should only be considered to a "limited extent."<ref>
{{supra1|Sutder}}{{atL|hsrlt|59}}<Br></ref>

{{reflist|2}}

==See Also==
* [[Sentencing Factors Relating to the Criminal Proceedings]]