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Criminal - Sentencing - Collateral Consequences

. 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.


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