The doctrine of collateral consequences ensures that incidental consequences for unusual cases are “fairly and sympathetically addressed” with an appreciation of the “vicissitudes of human experience”.[1]
In this post, the author surveys three interesting decisions which have considered the doctrine of ‘collateral consequences’ in the 8 months since the SCC rendered its judgment in R v Suter (2018).[2]
R v Suter and Collateral Consequences
In Suter, the Supreme Court of Canada found that a sentencing judge may consider collateral consequences when imposing a sentence. Collateral consequences 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”.[3]
In Suter, the Accused pled guilty to the crime of refusal, in relation to the tragic death of a young child. Months after the accident, Mr Suter was a victim of vigilante violence. Masked men abducted Mr Suter from his home, took him to a secluded area, and cut off his thumb with pruning shears. He was left unconscious in the snow. These acts were ‘collateral consequences’ insofar as they were consequences that flowed from the criminal offences for which Mr Suter was sentenced.
The Supreme Court of Canada found that collateral consequences, while “not punishment in the true sense” were “pains or burdens imposed by the state after a finding of guilt” and could be considered “in mitigation”.[4]
The Basis of the Doctrine
While the Supreme Court expressly considered the doctrine of ‘collateral consequences’, as such, in Suter, the notion is not novel. The doctrine “preserv[es] the continuing authority of the sanctioned range” while ensuring that incidental consequences for ‘unusual cases’ are “fairly and sympathetically addressed” with an appreciation of the “vicissitudes of human experience”.[5]
In this sense, the doctrine of collateral consequences is a natural extension of the standard approach to sentencing in Canada, based on ‘individualized proportionality’, and an expression of deontological, or so-called ‘just deserts’ theories of punishment – where, as H.L.A. Hart explains, moral blameworthiness serves as “the license to punish the offender.”[6]
Categories of Collateral Consequences
In Suter, the SCC confirms that there is no ‘rigid formula’, in considering collateral consequences.[7] As Professor Allan Manson explains the doctrine dictates that a sentence should account for the fact that, in certain cases, because of the offence, an offender may suffer:
- physical,
- emotional,
- social, or
- financial consequences.[8]
In the 8 months since the Supreme Court of Canada released its judgement in Suter, Courts have considered the effect of collateral consequences in three decisions.
R v MacIntosh (2018)
In R v MacIntosh, (2018)[9] Judge Atwood of the Nova Scotia Provincial Court relied heavily on the doctrine of collateral consequences in granting a conditional discharge. In that case, the offender was a nurse at an assisted living centre. The offender pled guilty to a trust theft, wherein she admitted to stealing over $27,000.00 from her employer. The offender entered an early guilty plea and made full restitution.
The Court observed that the case involved a “large breach-of-trust theft” and was a “close call”.[10] However, it appears that collateral consequences may have been a decisive factor.
In reaching his decision, Judge Atwood noted as follows:
Finally, I have factored into my decision the collateral consequences which have arisen as a result of Ms MacIntosh pleading guilty to theft. Job loss was inevitable; however, she has also lost temporarily her professional credentials as a result of a decision by the registered nursing licensing body. This will limit substantially Ms MacIntosh’s employment prospects, possibly for a long time to come, particularly in her chosen field of the health professions. This makes Ms MacIntosh unlike other persons convicted of theft. In my view, this should be considered in assessing the personal circumstances of Ms MacIntosh…[11]
The nature of these ‘collateral consequences’ might be seen to fall under social, or financial consequences, as contemplated by Suter.
R v TWS (2018)
In R v TWS,[12] the Accused was convicted for two counts of sexual interference. Justice Gates of the Alberta Court of Queen’s Bench considered two factors that he found to fall under the ambit of ‘collateral consequences.’
First, Justice Gates found that, during the period of the proceedings, the Accused and his family faced pervasive community stigma and ostracization, which also affected the Accused’s ability to find and maintain employment.[13] He indicated that he was prepared to take this into consideration “as part of the Accused’s personal circumstances in determining a proportionate sentence”.[14]
Second, and interestingly, Justice Gates also found that the length of time the matter took to reach resolution could be considered as part of the sentence. In TWS, an appeal, and retrial resulted in 5 years of delay prior to sentencing. Justice Gates cited the Alberta Court of Appeal Decision in R v Keegstra (1996),[15] where the Court found that long delay in criminal proceedings could be viewed as a mitigating factor because of “added expense” and “extended anxiety”.[16] He found that:
“In my view, this mitigating factor is related, and somewhat overlaps, the issue of collateral consequences addressed above. Some credit should be accorded to the Accused on account of the length of time required to bring this matter to a conclusion.”[17]
Justice Gates’ decision is an interesting development in the doctrine. Consequences such as stigma and loss of employment fit within social or financial consequences, as contemplated by Suter. However, trial delay appears to be a novel extension. It is not novel, insofar as the Alberta Court of Appeal has recognized it as mitigating.
However, it is novel insofar as it acknowledges an overlap between delay as a mitigating factor, and the collateral, individual consequences, such as anxiety and cost – possibly expanding the focus of delay as part of sentencing.
Further, considering the Supreme Court of Canada’s decision in R v Jordan (2016),[18] ongoing concerns about delay, and the drastic measure for violations of s. 11(b) – a stay of proceedings – emphasizing the collateral consequences of delay as part of sentencing is a novel and insightful extension of the document.
R v Devic (2018)
In R v Devic,[19] the British Columbia Provincial Court considered the case of an offender who was a 32-year old RCMP constable. He was married with children. He had aspired to be an RCMP officer since arriving in Canada, had an “unblemished record”, and had received four commendations for exemplary performance.[20]
In a lapse of judgment, he responded to an online personal ad on Craigslist. The was posted by a woman listing her age as 18. Over the course of a week, the offender and the woman exchanged approximately 200 emails, some of a sexual nature, with photographs attached. The two scheduled an in-person meeting.
In fact, the posting was made by a group called Creep Catchers, a “quasi-vigilante group”, whose goal, according to their website, is to “identify online predators to the community”.[21] At the meeting, members of the Creep Catchers confronted him. The meeting and confrontation were video recorded and ‘live streamed’ on Facebook.
The impact of the incident was profound. As the sentencing judge notes:
“Mr. Devic has already suffered significant consequences for his actions. His dream career in policing is over. He was suspended without pay immediately after his arrest causing economic hardship to his family. He remains unemployed, despite efforts to find work. He has been ostracized by work colleagues, friends, and neighbours. The Ministry of Children and Families initiated an investigation on the safety of his children…
Perhaps the biggest consequence has been his public shaming and humiliation. Video and photographs of Mr Devic were broadcast in the news and on social media. The charges against him have received a high profile and garnered much public interest. His reputation has been ruined, his dignity stripped, he has been publicly vilified, and he carries the stigma of a criminal offender. There has been no anonymity for Mr Devic, nor will there be given Mr Devic’s notoriety is preserved on the internet.”[22]
The Court noted the support of family and community members, who observed his “remorse, shame, and depth of suffering” and that he had become a “broken man”.[23]
In Devic, Judge Sutherland began by emphasizing the limits collateral consequences play in formulating a sentence. As the court explained, the mitigating effects of collateral consequences are reduced where they obviously, or inevitably flow from the commissions of an offence.[24] Further, such consequences “cannot eclipse the need for a sentence that emphasizes general deterrence and denunciation”.[25]
However, Judge Sutherland ultimately took collateral consequences into account, in a measured manner, as part of the overall mitigating circumstances in the case, noting as follows:
“[Mr. Devic] has already suffered immensely from the collateral consequences of his offence. Some of those consequences (for example, the loss of his job), should have been obvious to him at the time which attenuates their mitigating effect. He will, however, continue to bear the stigma of his offending and its public profile.”
Therefore, it appears the Devic confirms the doctrine of collateral consequences, insofar as it focuses on the emotional and social consequences. However, it also cautions that the doctrine should not extend so far as to usurp other sentencing considerations or over-emphasize consequences that naturally and inevitably flow from the commission of an offence.
Conclusion
Sentencing in Canada remains a highly individualized process, and the doctrine is an important extension of that principle. It remains to be seen how the doctrine of collateral consequences will be developed in future cases. However, decisions since Suter show promise. They illustrate that Courts are applying the doctrine in a measured, but meaningful manner, as part of individualized sentencing, and in a manner attentive to the vicissitudes of human experience.
[1] R v McGill, 2016 ONCJ 138 at para 69.
[2] 2018 SCC 34 [Sutter].
[3] Ibid. at paras 46-48.
[4] Ibid. at paras 46-48.
[5] R v McGill, 2016 ONCJ 138 at para 69.
[6] H.L.A. Hart, “Punishment and Responsibility” (1970) Philosophy 45 (172):162-162.
[7] Suter, supra at para
[8] Professor Allan Manson, The Law of Sentencing (Toronto: Irwin Law, 2001), cited in Suter, supra at para
[9] 2018 NSPC 45.
[10] Ibid at para 61.
[11] Ibid at para 58.
[12] 2018 ABQB 870 [TWS].
[13] Ibid at para 80.
[14] Ibid.
[15] 1996 ABCA 3.
[16] Ibid at para 82, cited in TWS, supra at para 82.
[17] Ibid at para 82.
[18] 2016 SCC 27.
[19] 2018 BCPC 257 [Devic].
[20] Ibid at para 13.
[21] Ibid at para 4.
[22] Ibid at paras 21-22.
[23] Ibid at para 20.
[24] Ibid at para 36.
[25] Ibid at para 36.
