Supreme Court Clarifies Criminal Law Sentencing Considerations

In R. v. Pham, the Supreme Court of Canada (SCC) was faced with the issue of whether a sentence otherwise falling within the range of fit sentences can be varied by an appellate court on the basis that the offender would face collateral consequences that were not taken into account by the sentencing judge. The SCC ruled collateral consequences may be relevant in tailoring the sentence, but their significance depends on and has to be determined in accordance with the facts of the particular case.

In this case, the accused, a non-citizen, was convicted of two drug-related offences. In light of a joint submission by the Crown and defence counsel, the sentencing judge imposed a sentence of two years’ imprisonment. Under the Immigration and Refugee Protection Act, a non-citizen sentenced to a term of imprisonment of at least two years loses the right to appeal a removal order against him or her. In the present case, neither party had raised the issue of the collateral consequences of a two year sentence on the accused’s immigration status before the sentencing judge. The SCC reduced the sentence of imprisonment reduced to two years less a day.

The SCC ruled proportionality is a fundamental principle of sentencing–that is, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. It explained it as follows:

“Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. . . . Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.”

In addition to proportionality, the SCC ruled the principle of parity and the correctional imperative of sentence individualization also inform the sentencing process. Consequently, in determining what a fit sentence is, the sentencing judge should take into account any relevant aggravating or mitigating circumstances, as well as objective and subjective factors related to the offender’s personal circumstances.

As a corollary to sentence individualization, the SCC held the parity principle requires that a sentence be similar to those imposed on similar offenders for similar offences committed in similar circumstances. In other words, “if the personal circumstances of the offender are different, different sentences will be justified.”

The SCC said ultimately, the sentence that is imposed must be consistent with the fundamental purpose of sentencing, which is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. The sentence must have one or more of the objectives of denunciation, general and specific deterrence, separation of offenders from society if need be, rehabilitation, reparations to victims for harm done to them, promotion of a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.

In light of these principles, the SCC held the collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender. They may be taken into account in sentencing as personal circumstances of the offender. However, they are not, strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of the offender. Their relevance flows from the application of the principles of individualization and parity. The relevance of collateral consequences may also flow from the sentencing objective of assisting in rehabilitating offenders. Thus, when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offenders, the most suitable one may be the one that better contributes to the offender’s rehabilitation.

However, the 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. The SCC explained this as follows:

“As a result of the commission of an offence, the offender may suffer physical, emotional, social, or financial consequences. While not punishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation. The mitigating effect of indirect consequences must be considered in relation both to future re-integration and to the nature of the offence. Burdens and hardships flowing from a conviction are relevant if they make the rehabilitative path harder to travel. Here, one can include loss of financial or social support. People lose jobs; families are disrupted; sources of assistance disappear. Notwithstanding a need for denunciation, indirect consequences which arise from stigmatization cannot be isolated from the sentencing matrix if they will have bearing on the offender’s ability to live productively in the community. The mitigation will depend on weighing these obstacles against the degree of denunciation appropriate to the offence.”

Note: This summary is drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.