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Criminal - Sentencing - Family Consequences. R. v. N.F.
In R. v. N.F. (Ont CA, 2026) the Ontario Court of Appeal allowed a defendant's criminal sentencing appeal, here where "(a)lthough accepting that the sentence was fit at the time it was imposed, the appellant seeks a sentence reduction, relying on fresh evidence of changed family circumstances":[5] The appellant’s appeal from sentence relies on fresh evidence of changed family circumstances. The fresh evidence consists of two affidavits sworn by the appellant, in which she deposes that, for the past three and a half years, she has been in a stable relationship, and that, while on bail pending appeal, she became pregnant with her new partner’s baby, who was born February 25, 2025. Additionally, during her brief incarceration prior to being granted bail pending appeal, the appellant’s older daughter developed serious mental health issues, including anxiety, suicidal ideation, and an eating disorder, and began self-harming. These mental health issues improved after the appellant was released on bail. The appellant has limited family support and, as a result, argues that incarceration would have significant negative impacts on her family. Although she acknowledges that it would be an extremely lenient sentence, she asks that the net sentence of 46 months’ imprisonment be substituted with a conditional sentence.
[6] The Crown does not oppose admission of the fresh evidence. Nor does it suggest that a sentence reduction is not in order. The Crown merely opposes substitution of the sentence with a conditional sentence. The Crown submits that the appellant committed an extremely serious drug offence and that the sentence imposed was already on the lower end of the range for such offences. It submits that the appellant must be incarcerated, but that a 10-month reduction in the sentence is appropriate.
B. Analysis
[7] The parties agree that the effective four and a half year sentence – 46 months going forward, after credit for pre-sentence custody and time on restrictive bail – was fit when it was imposed. It is thus the starting point for our analysis.
[8] In imposing the sentence that she did, the trial judge recognized the severity of the offence. She noted that, in cases of fentanyl trafficking, denunciation and deterrence are the primary considerations, given the devasting impact that fentanyl has on our communities. Additionally, the drugs had been found in various locations throughout the appellant’s home that was shared with her young daughter. They were not locked away and were accessible to her. The trial judge considered this aggravating factor, as well as the fact that the appellant was out on bail pending other drug charges at the time of the offence.[2]
[9] The trial judge also took into account the significant mitigating factors in this case. The appellant is a first-time offender who was in an abusive relationship at the time of her offence. Since the offence, the appellant has made significant and commendable strides in her rehabilitation. She has disassociated from the drug subculture in which she was involved, completed a methadone program, complied with the conditions of her bail, and was set to graduate with a diploma from an Addictions and Community Support Worker Program. The appellant expressed wanting to use her experiences to help others facing addiction. The trial judge also considered the fact that the appellant was the primary caregiver for her young daughter.
[10] The four and a half year sentence, which was below the normal range for this offence, appropriately reflected the balance between these aggravating and mitigating circumstances. The issue on this appeal is whether the fresh evidence, which the parties have agreed should be admitted, reflects changed circumstances that justify a reduction in sentence and, if so, how much of a reduction is appropriate.
[11] An offender’s family circumstances can impact sentencing in at least two key ways: R. v. Habib, 2024 ONCA 830, 99 C.R. (7th) 110, at para. 47. First, caring and providing for family members shows good character and can increase rehabilitative prospects. It is thus a mitigating factor. Second, 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. Where applicable, judges should consider the mitigating effect of family ties and the collateral consequences of incarceration that flow from severing those ties. Judges must, in crafting a fit sentence, “preserve the family as much as possible”: R. v. Spencer (2004), 2004 CanLII 5550 (ON CA), 72 O.R. (3d) 47, at para. 47 (C.A.), leave to appeal refused, [2005] S.C.C.A. No. 4. In doing so, they may depart – even significantly – from the sentencing range: Habib, at para. 45. However, these considerations must not overwhelm the other principles of sentencing. The sentence imposed must still be proportionate, taking into consideration the seriousness of the offence and the moral culpability of the offender: Spencer, at paras. 46-47.
[12] Here, a conditional sentence would not be proportionate to the gravity of the offence, nor would it achieve the sentencing goals of denunciation and deterrence, which are of primary importance in this context. Those who traffic large amounts of fentanyl must expect a significant period of incarceration: R. v. Loor, 2017 ONCA 696, at para. 50; R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at para. 92, per Moldaver J. (concurring).
[13] That said, we are persuaded that the fresh evidence renders the sentence originally imposed unfit and justifies a reduction in sentence. Since sentencing, the appellant has continued to demonstrate that she can be a positive figure in her family’s life, which reduces the need for a lengthy period of incarceration. Moreover, the collateral consequences of separating her from her newborn baby and vulnerable daughter are severe. Considering the fresh evidence, along with the principles of sentencing for drug trafficking offences, we are of the view that a reduction of 10 months is appropriate. This leaves a remaining sentence of 36 months’ imprisonment – a sentence that is necessary to deter others and denounce the serious offence which the appellant was convicted of, but one that also, to the extent possible, mitigates against the negative consequences of incarceration on the appellant and her family. . R. v. D.P.R.
In R. v. D.P.R. (Ont CA, 2026) the Ontario Court of Appeal allowed a Crown criminal sentence appeal, this brought against a conviction for sexual assault and "a conditional sentence of two years less one day, plus two years’ probation".
This case is a stark 'family consequences' situation on criminal sentencing: Sentencing
[10] The sentencing judge did not make a finding that the respondent had accepted responsibility for the assault or demonstrated any remorse. Aside from admitting to the author of a pre-sentence report that he had touched the complainant’s buttocks, the respondent maintained that the episode did not happen and said he did not recall any of the details of what was alleged against him.
[11] The respondent’s circumstances at the time of sentencing were that he was single, employed by a recycling company, suffered a traumatic brain injury after being struck by a car when crossing the road in 2023, and had lived with his younger son since March 2023. No information was provided about the nature of the brain injury or its impact on the respondent, other than that the respondent treats its symptoms with smoking cannabis every other day.
[12] The respondent lives with his younger son (the complainant’s brother) who is an adult with autism and receives ODSP.
[13] The Crown sought a three year penitentiary sentence plus ancillary orders. The defence sought a conditional sentence of two years less one day, plus three years’ probation.
[14] In sentencing submissions, defence counsel described the respondent’s son, with whom he resided, as “autistic” and “dependent on” the respondent, but provided no explanation of his capacities, or his living arrangements prior to moving in with the respondent in March 2023. In submissions, the defence argued that the respondent’s son would have to find other accommodations as he would not be able to afford the apartment on what he received from ODSP.
The sentencing judge’s reasons
[15] The sentencing judge, as required by s. 718.2(a) of the Criminal Code, R.S.C., 1985, c. C-46, canvassed relevant mitigating or aggravating factors.
[16] The aggravating factors were identified as:(1) The offence itself: the respondent was in a position of trust over the complainant, and while the duration of the assault was brief, it occurred in at least two different places in the home;
(2) The complainant was a child;
(3) The respondent used, or attempted to use, alcohol to reduce the complainant’s inhibitions or resistance;
(4) The assault occurred in the complainant’s home;
(5) The respondent sought to prevent disclosure through an implied threat of harm to the complainant’s younger sister; and
(6) The offence had a significant impact on the complainant – contributing to an estrangement with her mother as well as life-long psychological difficulties. [17] The sentencing judge found four mitigating factors:(1) The respondent is essentially a first-time offender: his criminal record is minor, dated, and unrelated to the offence of which he was convicted;
(2) The respondent’s family is supportive;
(3) The respondent has been steadily employed since high school; and
(4) The respondent’s adult son is dependent on him, and would not be able to maintain their current joint residence if the respondent was incarcerated. [18] The sentencing judge accepted that the respondent had a high degree of moral culpability for the offence. None of the mitigating factors served to reduce his moral culpability.
[19] The sentencing judge canvassed the appropriate sentencing principles. He noted that both parties agreed that imprisonment was required. The sentencing judge also noted that restraint was required when sentencing a first-time offender, such that the shortest sentence proportionate to the offence should be imposed. Nevertheless, he also noted that denunciation and deterrence had priority as sentencing principles over rehabilitation and restraint, and even though the respondent was not considered at risk to re-offend, a custodial sentence was warranted.
[20] Canvassing the sentencing authorities provided by the Crown and the defence, the sentencing judge concluded the appropriate sentence was two years less one day, followed by two years of probation.
[21] Having concluded that two years less one day would be a fit sentence of incarceration, the sentencing judge considered whether a conditional sentence would be appropriate. In concluding that it would be, the sentencing judge noted that the assault did not result in bodily harm and that the respondent’s risk of re-offending was low. The sentencing judge was persuaded by the defence submission that a collateral consequence of the respondent’s incarceration would be the “likely displacement of their autistic son”, and that this constituted an exceptional circumstance that would make a conditional sentence appropriate.
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Analysis
[26] Sentencing decisions, as the Supreme Court held in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, are owed significant deference on appeal. Intervention is only warranted where: (1) the reasons for sentence contain an error in principle that impacts sentence (such as an error in law, failure to consider a relevant factor, erroneous consideration of an aggravating or mitigating factor, and unreasonable overemphasis or underemphasis of a relevant factor); or (2) the sentence imposed is “demonstrably unfit”: Lacasse, at para. 11.
[27] As explained below, the sentence imposed is demonstrably unfit. A sentence must be proportionate to the gravity of the offence and the degree of moral culpability of the offender. In R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, the Supreme Court held that a single sexual offence against a child should generally attract a “mid-single digit” sentence, reflecting the high moral blameworthiness of the conduct and the nature of the harm suffered by child victims, which can be profound and enduring: at paras. 50-90, 114-115. The Court held that sentences for sexual offences against children ought generally to be higher than sentences for similar offences committed against adults, and higher when committed by a person in a position of trust, particularly a family member: at paras. 116-118, 130. Sentencing is to prioritize denunciation and deterrence: at paras. 101-5.
[28] The moral culpability of the respondent is high. None of the mitigating factors identified by the sentencing judge serve to reduce it.
[29] As this court explained in R. v. M.M., 2022 ONCA 441, “conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate”: at para. 16. The court in M.M. did not attempt to enumerate what those exceptional circumstances would be. The sentencing judge in this case accepted that it would be inappropriate to incarcerate the respondent on the basis of the collateral effect his incarceration would have on his dependent adult son.
[30] This court has held that family separation consequences should be mitigated where possible and “may justify a sentence adjustment – even a significant one – or a departure from the range”: R. v. Habib, 2024 ONCA 830, at para. 45. However, collateral consequences – including family separation – cannot be allowed to overwhelm other sentencing principles and cannot result in a sentence that is disproportionate to the gravity of the offence and the moral blameworthiness of the offender.
[31] The sentence imposed is overly lenient. None of the cases relied on by the defence in support of a conditional sentence involved sexual offences against children. Furthermore, the evidence of a negative collateral impact on the respondent’s son did not rise above the ordinary family disruption that occurs whenever an offender with family responsibilities is incarcerated. Although the respondent’s son was described by counsel as “autistic”, there was no evidence about the nature of his disability beyond this broad label. The sole fact alleged in relation to the respondent’s son was that he would not be able to afford to continue residing in the apartment he shared with his father without his father’s financial support.
[32] Accordingly, the sentence imposed must be set aside. I would find an appropriate sentence to be a mid-single digit penitentiary sentence. As canvassed above, there were many aggravating factors: the offence was committed by the complainant’s stepfather in the family home. Alcohol was used. Although the assault was not part of a greater pattern of offending, it was not a momentary indiscretion and proceeded throughout three rooms of the apartment, despite the complainant protesting that she felt unwell and needed to use the washroom. The respondent abused the complainant emotionally by threatening to harm her younger sister in order if she disclosed the assault to her mother or another adult. The complainant testified that she suffered profound psychological harm from the offence, and that it contributed to her alienation from her mother and siblings when she was still a child.
[33] An appropriate mid-single digit sentence would be three years’ imprisonment. . 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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