R. v. Habib, 2024 ONCA 830
[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.
[48] The sentencing judge overlooked these principles. While he considered the family support the appellant received, he did not address the care and financial support that the appellant gave to his two ailing parents and three younger siblings or the adverse consequences of separating the appellant and his family. He thus did not “preserve the family as much as possible.” This error in principle impacted the sentence because the consequences that he overlooked help “determin[e] the length of [the] prison term.” See Spencer, at para. 47.
[49] The Crown’s first two counterarguments fail. It first argues that the family separation consequences were irrelevant because the appellant’s parents and siblings were not his dependents. This submission is wrong because Parliament has not restricted these consequences to dependency situations and has instead directed courts to consider all the circumstances. See Suter, at para. 48; Criminal Code, ss. 718.2(a), (d)-(e). Next, the Crown argues that the consequences are the foreseeable result of the appellant’s crimes. While this argument might carry more weight if the appellant alone bore the consequences (Suter, at paras. 49-50), it fails here because, as the evidence before the sentencing judge showed, they also impact the appellant’s innocent family members. The fresh evidence confirms this. The appellant’s incarceration caused his family to lose their apartment, his father to return to a job that worsened his abdominal pain, his mother to suffer depression, and his younger sister to interrupt her studies to support the family.[6] They do not deserve to suffer these adverse consequences just because the appellant should have foreseen that his actions would cause them. Courts must mitigate those consequences to the extent possible.
[50] The Crown finally argues that the sentencing judge could not prevent or mitigate the family separation consequences because he determined that a lower sentence would be unfit. This submission’s starting point is partially correct. The sentencing judge could not prevent these consequences entirely because the gravity of the appellant’s crimes required a penitentiary sentence. But the argument fails because it overlooks that family separation consequences help “determin[e] the length of a prison term,” even for grave crimes. See Spencer, at para. 47. Thus, this court has sometimes adjusted the length of prison terms to mitigate these consequences. See Collins, at paras. 39-43; Forsythe, at paras. 5-6. The sentencing judge had to consider whether that was possible here. See Spencer, at para. 47. And because the appellant’s caregiving and providing role and the family separation consequences bore on the proportionality principle, the sentencing judge could not determine that a lower sentence would be unfit without first considering those factors.
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