Individualization and the Future of Sentencing

  • February 01, 2019
  • Benjamin L. Berger

The collateral consequences of R. v. Suter

Despite what it says in the Criminal Code, proportionality is not the fundamental principle of sentencing in Canada. Or, to be more precise, proportionality as it is described in the Criminal Code is not what anchors sentencing. Section 718.1 neatly describes the fundamental principle of sentencing as requiring that a sentence be proportionate in relation to two factors: “the gravity of the offence and the degree of responsibility of the offender.” Yet, as I have noted elsewhere, the past 15 years have seen a substantial expansion of regard for what is salient to crafting a fit sentence.

From police brutality during arrest (R. v. Nasogaluak), Indigeneity and colonialism (R. v. Ipeelee), to the offender’s subjective experience of hope (R. v. Zinck), the Supreme Court of Canada (“SCC”) has insisted that considerations not readily digestible in terms of responsibility or gravity are nevertheless important factors in sentencing because they calibrate the sanction to the circumstances and experiences of the person being punished.

So, too, should a judge consider the “collateral consequences of a sentence.” In R. v Pham the SCC held that an otherwise fit sentence could be reduced to avoid immigration consequences that would flow from a carceral sentence of two years or more. R v Suter, 2018 SCC 34, again treated this issue of collateral consequences, but with more far-reaching implications.

The facts of Suter are bizzare. During a dispute with his wife, Suter accidentally drove his vehicle through a restaurant patio, killing a two- year-old boy. Although he was not impaired, on the advice of Brydges counsel, he refused to provide a breath sample and was charged with, and subsequently pled guilty to, refusing to provide a sample knowing a death was caused. But the macabre twist was this: after being charged, Suter was abducted by three hooded men who drove him to a secluded area, beat him, and cut off his thumb with pruning shears.

The poor legal advice he received was clearly relevant to sentencing, but what about the vigilante action? The sentencing judge took it into account in setting the sentence below the normal range and Moldaver J., for a majority of the SCC, held that he was entitled to do so. Justice Moldaver expansively defines collateral consequences as including “any consequences arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence that impacts an offender.” (para. 47) He expressly notes that the relevance of these consequences does not come from their impact on responsibility or the gravity of the offence. Rather, they matter because they may mean “that a particular sentence would have a more significant impact on the offender because of his or her circumstances.” (para. 48)

Justice Moldaver describes Suter as an “incremental extension” of Pham. But it’s much more than that. The collateral consequences in Pham involved state action that followed sentencing. Suter decouples “collateral consequences” and state action, and includes consequences of offending, not just of a sentence. This move is appealing: it continues the turn toward a view of punishment as the offender’s overall and actual experience of the consequences of crime, rather than simply years of imprisonment. It thus points to the importance to sentencing of considerations like mental health impacts, community and family estrangement, and prior societal mistreatment.

But it also creates a need to distinguish the kinds of collateral consequences we care about. It cannot be, for example, that the loss of a high paying job or a fall from public grace as a consequence of crime means a lighter sentence. Were it so, those with the most pre-existing advantage would be less harshly treated and those with little to lose would be punished more. Suter opened up an important path. Where it should take us is not yet clear.

Benjamin L. Berger is a Professor at Osgoode Hall Law School, York University.