A new approach to the consideration of collateral consequences in criminal sentencing.

• Author: Monkman, Eric

INTRODUCTION i. The three categories of collateral consequences ii. The problem with collateral consequences iii. How judges should consider collateral consequences I OVERVIEW OF SENTENCING IN CANADA i. Sentencing prior to the Charter of Rights and Freedoms ii. The development of sentencing principles after the introduction of the Charter iii. Collateral consequences in the context of Canada's sentencing regime II THE SUPREME COURT'S' CONSIDERATION OF COLLATERAL CONSEQUENCES IN R V PHAM III HOW PHAM HAS BEEN INTERPRETED IN LOWER COURTS i. Pham's interpretation in cases involving stigma or loss of employment ii. Post-Pham jurisprudence for consequences caused by legislation other than the Criminal Code IV COLLATERAL CONSEQUENCES NOT IMPOSED BY THE GOVERNMENT i. How stigma and its consequences are currently considered by judges ii. The difficulties caused by the consideration of stigma during sentencing V COLLATERAL CONSEQUENCES THAT ARISE FROM LEGISLATION i. Collateral consequences that arise from an order included in a sentence ii. The current approach to orders under sections 673 and 785 of the Criminal Code iii. Why the approach in Harb is consistent with the provisions of the Criminal Code iv. Collateral consequences arising from other government legislation v. The problems caused by collateral consequences flowing from legislation other than the Criminal Code VI THE THREE-STEP GUIDELINE FOR SENTENCING i. The steps of the three-step guideline ii. Examples of how the three-step guideline could be applied iii. Possible criticisms of the three-step guideline CONCLUSION "My object all sublime / I shall achieve in time--/ To let the punishment fit the crime--/ The punishment fit the crime;"

--WS Gilbert, "The Mikado". (1)

INTRODUCTION

The idea that a sentence should be proportionate to the crime it is intended to punish dates back at least to the time of Hammurabi's Code (circa 1780 BCE). (2) This principle has been incorporated into Canadian law, and is codified as a "fundamental principle" of sentencing in section 718.1 of the Criminal Code, which states that "[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender". (3) While this principle guides Canadian judges in their sentencing decisions, determining an appropriate sentence is much more difficult than it was in Hammurabi's time. Hammurabi's Code imposed sentences on offenders similar in nature to the contrapasso punishments imposed on the denizens of Dante's Inferno: they were often forced to suffer a harm similar to the one that they inflicted on their victims (for example, Hammurabi's Code includes the famous "eye for an eye" and "tooth for a tooth" punishments). (4) In Canada, inflicting such punishments would "outrage standards of decency" and would thus be contrary to section 12 of the Charter of Rights and Freedoms, which prohibits cruel and unusual punishments. (5) For most crimes, Canadian judges must instead impose a sentence that combines one or more of fines, incarceration and a limited list of judicial orders related to the crime (for example, someone convicted of dangerous driving could be prohibited from driving as per section 259 of the Criminal Code). (6) Judges must use these punishments as tools in order to craft the most appropriate sentence.

1. THE THREE CATEGORIES OF COLLATERAL CONSEQUENCES

   While sentences are generally set in terms of time in prison or money to be paid in fines, the negative effects of the sentence on the offender are often not limited to these punishments. Often, sentences can have further negative effects on the offender called collateral consequences. In this article, the term "collateral consequence" is used to refer to any negative effect that a sentence could have on an offender beyond the loss of liberty in the case of a prison sentence or the loss of money that ensues from a fine. This article will divide collateral consequences into three categories. The first category includes those penalties or disadvantages that are imposed upon offenders by other individuals, by organizations, or by society at large. An example of such a disadvantage would be the difficulty that many people with a criminal record have in obtaining certain types of employment. The second type of collateral consequences considered are consequences that arise directly as a result of a punishment that constitutes a "sentence" under sections 673 or 785 of the Criminal Code, as in the case of someone who is prohibited from possessing firearms under section 109(1) of the Criminal Code after being convicted of a fire-arm-related offence. (7) Finally, there are collateral consequences that are imposed on offenders through statutes and legislation other than the Criminal Code. For example, a person who is not a Canadian citizen and who is convicted of certain offences could be liable to exclusion from Canada as a result of sections 36 and 45 of the Immigration and Refugee Protection Act. (8)

2. THE PROBLEM WITH COLLATERAL CONSEQUENCES

   Collateral consequences can create difficulty during the sentencing process. As previously stated, a sentence should be proportionate to the gravity of the offence and the degree of responsibility of the offender. If an otherwise proportionate sentence involves collateral consequences that are not taken into account, its total impact on the offender could actually be disproportionate. Unfortunately, simply adjusting sentences so that they are proportionate after collateral consequences are taken into account creates new problems.

   One problem that can be caused by the consideration of collateral consequences during sentencing is that such consideration can cause similar offenders to receive different sentences. The principle that similar crimes should receive similar sentences is set down in section 718.2(b) of the Criminal Code, which states that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances." (9) This rule is known as the "principle of parity." One problem with collateral consequences is that they can often lead an otherwise identical sentence to have a much more negative effect on some offenders than on others for reasons unrelated to the gravity of the offence or the degree of responsibility of the offender. For example, a gunsmith who is found guilty of possessing a prohibited firearm, and is prohibited from possessing firearms as per section 109(1) of the Criminal Code, could lose his or her livelihood. (10) The effect of such an order on the gunsmith could be much more detrimental than if a similar order were imposed on someone whose livelihood did not depend on working with firearms. (11) A judge who wished to impose a more proportionate sentence on the gunsmith might therefore choose not to impose the prohibition order on him or her, or to decrease his or her sentence in terms of fines or years in prison to compensate for the negative effect of the order. Such an adjustment does not seem fair because, in this case, a gunsmith guilty of a firearms offence would be given a lesser penalty than a butcher, a baker or a candlestick maker who committed the same crime for reasons unrelated to the gravity of his or her offence or his or her blameworthiness. In cases like this one, judges must find some way to reconcile the need to ensure that every sentence is proportionate to the crime committed by every individual offender and the need to impose similar sentences for similar offenders.

   Collateral consequences can also be problematic because they often arise from a regulatory system that is otherwise unconnected to the system of criminal justice. For example, the Canadian government uses the provisions of the IRPA to regulate the entry and exit of foreigners to Canada. (12) One of the objectives of the IRPA is to protect public safety, and one of the ways it achieves that objective is by allowing the government to declare some individuals inadmissible to Canada on grounds of criminality. (13) In this case, the government is excluding people from Canada not to punish them for their crimes but in order to protect the public. (14) Nevertheless, a Canadian judicial sentence that causes an offender's exclusion from Canada could be disproportionate to the gravity of the offence or the blameworthiness of the offender. Given this problem, and the problem of reconciling proportionality with parity, judges need guidance on how to consider collateral consequences during sentencing. Unfortunately, the Supreme Court of Canada has failed to provide clarity on these issues.

3. HOW JUDGES SHOULD CONSIDER COLLATERAL CONSEQUENCES

   The guiding principle should be that judges should take collateral consequences into account when imposing sentences, but that the manner in which a collateral consequence is considered should vary based on the type of collateral consequence in question. Generally, judges should not stray from the range of otherwise appropriate sentences when an offender is likely to suffer from collateral consequences that are not imposed by the government. When collateral consequences are imposed as part of a "sentence" under sections 673 or 785 of the Criminal Code, judges should take into account the effects of the collateral consequence on the offender and vary the range of appropriate prison times or fines to take these effects into account. Finally, when considering collateral consequences that are caused by legislation other than the Criminal Code, judges should follow a three-step guideline that ensures that sentences are not too lenient and that due weight is given to proportionality and to the intent behind the legislation causing the collateral consequence.

   I OVERVIEW OF SENTENCING IN CANADA

1. SENTENCING PRIOR TO THE CHARTER OF RIGHTS AND FREEDOMS

   Prior to the introduction of the Charter of Rights and Freedoms in 1982, trial judges had very broad discretion when...