COURT OF APPEAL FOR ONTARIO
Tulloch C.J.O, MacPherson and Sossin JJ.A.
BETWEEN
His Majesty the King
Respondent
and
D.B.
Appellant
Michael Davies, for the appellant
Stephanie A. Lewis, for the respondent
Heard: June 6, 2025
On appeal from the sentence imposed on March 1, 2024, by Justice Laurie Lacelle of the Superior Court of Justice.
A. Overview
1The appellant, D.B., appeals the four-year sentence imposed by the trial judge following his conviction for sexual assault under s. 271 of the Criminal Code, R.S.C. 1985, c. C-46. This appeal highlights the challenge of balancing the profound harm caused by sexual violence with the significant collateral consequences incarceration imposes on offenders and their families. The appellant, a youthful first-time adult offender, sexually assaulted a 16-year-old co-worker and friend in her home, causing her lasting trauma. The evidence at sentencing established that a penitentiary term was necessary to reflect the seriousness of the offence. However, such a sentence would also have severe collateral consequences for the appellant and his family. It would separate him from his spouse and their two children, eliminate the family’s sole source of income, and likely result in the loss of their home.
2I agree with the trial judge that a penitentiary sentence is necessary and that a conditional sentence was inappropriate in the circumstances. Denouncing and deterring sexual violence against young people under 18, which exploits their vulnerability and causes devastating harm, must be prioritized. A conditional sentence would not achieve these objectives here.
3However, I would allow the appeal because the trial judge erred in setting the length of the penitentiary sentence by failing to consider the collateral consequences for the appellant and his family and by relying on unproven aggravating factors concerning social media posts made by the appellant after trial. Failure to consider the collateral consequences of family separation and the resulting financial hardship, coupled with the trial judge’s reliance on the social media posts made by the appellant after trial, an aggravating factor to which the appellant was not given the opportunity to respond, are errors in principle, warranting appellate intervention. Having found that there is an error in principle, there is a need for this court to re-assess the appropriateness of the four-year sentence imposed. Having considered all the circumstances of this case, and principles of sentencing, I would substitute a three-year sentence. This sentence denounces and punishes the appellant’s actions while accounting for the collateral consequences that were overlooked and the procedural unfairness.
B. Facts
4The appellant and A.H. met while working at McDonald’s in 2018 and developed a friendship where A.H. relied on him for emotional support. At the time, the appellant was 22 years old, and A.H. was 16 years old. On the day of the offence, A.H. invited the appellant to her home while her family was away to watch a movie in her basement. They engaged in consensual kissing, but A.H. clearly stated she did not want to engage in sexual intercourse. Despite her objections, the appellant put on a condom and proceeded with vaginal intercourse until he ejaculated, causing A.H. significant distress, including a panic attack.
5Two years later, she went to the police, who charged him with sexual assault. On November 17, 2023, the trial judge accepted A.H.’s testimony, rejected the appellant’s claim of consent, and convicted him of sexual assault.
6At sentencing, the Crown sought a four-year penitentiary sentence, emphasizing A.H.’s age, the breach of trust, and the profound impact on her, as detailed in her victim impact statement. The self-represented appellant sought a community-based sentence, citing his lack of criminal record, prosocial life, and family responsibilities. A pre-sentence report noted his military service, role as a father to three children (two of which were very young), and mental health challenges, for which he took prescribed medication. Letters of support described him as a loving father and partner. However, the appellant maintained his innocence, expressed frustration with the verdict, and made derogatory comments about A.H., alleging collusion with his ex-partner.
7On March 1, 2024, nearly six years after the offence, the trial judge imposed the four-year penitentiary sentence requested by the Crown. The trial judge identified aggravating factors, including A.H.’s age, the offence’s location in her home, and the significant harm caused. She noted the appellant’s lack of insight, referencing alleged social media posts described by A.H. as demeaning. While acknowledging the appellant’s prosocial history, she concluded that denunciation and deterrence, which she was required by s. 718.01 of the Criminal Code to prioritize for offences against persons under 18, necessitated a four-year sentence.
C. Issues on Appeal
8The appellant raises two grounds of appeal:
Did the trial judge err by failing to consider the collateral consequences of family separation resulting from incarceration?
Did the trial judge err by relying on unproven allegations of social media posts as an aggravating factor?
9I will also address whether the four-year sentence is demonstrably unfit and, in light of the error in principle found, determine the appropriate sentence.
D. Standard of Review
10Sentencing decisions receive significant deference. Appellate intervention is warranted only if the sentencing judge commits an error in principle that impacts the sentence or if the sentence is demonstrably unfit. Errors in principle include failing to consider relevant factors or relying on improper factors: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 26 (“Friesen (2020)”).
E. Analysis
(1) The Principles Governing Collateral Consequences
11At the outset, I restate the settled principles governing collateral consequences which Justice Moldaver defined in R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, building on the Supreme Court’s earlier decision in R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739.
12First, collateral consequences humanize and individualize sentencing by accounting for its effects other than the criminal sanction itself: Pham, at para. 19, quoting R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (C.A.), at para. 158; see also Suter, at para. 48. These impacts can be severe. In Pham’s words, “[p]eople lose jobs; families are disrupted; sources of assistance disappear,” which “make[s] the rehabilitative path harder to travel,” hinders “future re-integration,” and can reduce the need for denunciation and deterrence: at para. 12 (quotation omitted); see also Suter, at para. 48 n.2. Likewise, Suter underscored that “a particular sentence [can] have a more significant impact on the offender because of his or her circumstances”: at para. 48. Suter thus affirmed cases which recognize the heightened impact of collateral consequences on people who already face marginalization and disadvantage, including due to financial insecurity, mental health challenges, and precarious immigration status: at para. 56 (citing cases).
13Second, considering collateral consequences is mandatory, not optional. As Suter explained, “relevant collateral consequences must be taken into account” because they “enable[] a judge to craft a proportionate sentence”: at paras. 46, 48 n.3. Suter adopted this rule because whether a sentence is proportional to the gravity of the offence and the degree of responsibility of the offender as s. 718.1 of the Criminal Code requires depends on its impact on the defendant in addition to its length. Since collateral consequences increase the impact on the defendant, they are integral to proportionality and failure to consider them may “render[] a given sentence unfit”: at para. 48; see also R. v. Hills, 2023 SCC 2, 477 D.L.R. (4th) 1, at paras. 135-36.
14Third, the law approaches collateral consequences generously, not restrictively. Suter defined them broadly to encompass “any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender,” including “physical, emotional, social, or financial consequences”: at para. 47 (quotation omitted). Suter also held that such consequences need not be unique or exceptional – they can also be “foreseeable” or “flow naturally from the conviction, sentence, or commission of the offence”: at para. 49 (emphasis in original). Thus, Suter and Pham directed courts to grapple with common and foreseeable consequences of the criminal process such as deportation, family separation, and the loss of work: Suter, at paras. 47, 49, 56; Pham, at paras. 12-13. Such “normal effects … can be mitigating” even if not uniquely harsh: R. v. Friesen, 2022 ABCA 147, 45 Alta. L.R. (7th) 236, at para. 43.
15Finally, Suter clarified that the inevitability exception to this generous approach is narrow. As Suter explained, this exception only applies “where the consequence is so directly linked to the nature of the offence as to be almost inevitable”: at para. 49 (quotation omitted). For example, Suter noted that “an injury resulting from an impaired driving offence (a foreseeable consequence of driving while impaired) may have less of an attenuating impact”: at para. 50. Because the exception only applies to self-inflicted injuries flowing from the commission of the crime itself, it does not cover consequences of the criminal justice’s response to the offence. Overextending the exception in that manner would negate Suter’s guidance that common and foreseeable consequences of conviction and sentence like family separation, the loss of employment, and deportation are relevant and must be considered.
(2) Failure to Consider Collateral Consequences
16The appellant argues that the trial judge erred by not considering the significant collateral consequences of incarceration, including financial hardship, loss of housing, separation, and emotional harm to his partner and young children, relying on Suter and R. v. Habib, 2024 ONCA 830, 99 C.R. (7th) 110.
17The Crown contends that the trial judge was aware of these consequences, as she invited the appellant to address the impact of incarceration, reviewed the pre-sentence report, and noted his loss of military employment. The Crown argues that her failure to explicitly mention family separation does not constitute an error.
18I disagree.
19First, failing to meaningfully engage with the collateral consequences of family separation is an error in principle, and one that materially affected the sentence. The prospect of family separation requires sentencing judges to meaningfully consider its consequences, even for serious offences: Habib, at paras. 45-47; R. v. Simoes, 2014 ONCA 144, at para. 14, citing R. v. Middleton, 2009 SCC 21, [2009] 1 S.C.R. 674.
20As well, sentencing judges must do their best to consider family separation consequences with the information available to them. Evidence of these consequences does not have to meet an onerous specificity threshold to be considered or to justify a sentence reduction. That would impose unnecessary evidentiary burdens. For instance, detailed or expert evidence is typically not needed to prove that family separation would cause common well-known consequences, such as the adverse effects of separating parents from young children: Simoes, at para. 14; R. v. McDonald, 2016 NUCA 4, at para. 43. Thus, sentencing judges may accept as proven and should meaningfully consider any undisputed information concerning family separation consequences disclosed at trial, at sentencing, in the pre-sentence report or in the agreed facts. See Criminal Code, ss. 721, 724(1), 724(3). These sources will typically provide enough information. In the rare cases where a sentencing judge lacks sufficient information, they may ask the parties if they wish to call additional evidence.
21The evidence showed significant family separation consequences. The appellant was the sole provider for his partner and two children who lived with him (ages three and six months), and he supported an older child from a prior relationship. In the event of a penitentiary sentence, his partner, a stay-at-home parent, faced financial instability, forced relocation from the military housing, and single parenting. Finally, the pre-sentence report described the appellant as an active, nurturing father, yet the trial judge did not address the emotional toll of separating him from his children, especially his three-year-old daughter and six-month-old son. This was an error because separating parents from such very young children can have “incalculable adverse effects for both the [parent] offender and [the] children”: McDonald, at para. 43 (quotation omitted), cited approvingly in Suter, at para. 56.
22Second, while the trial judge noted the appellant’s job loss, she dismissed it as carrying “no weight.” This was also an error in principle because this consequence must be considered: Pham, at para. 12; R. v. Folino (2005), 2005 CanLII 40543 (ON CA), 77 O.R. (3d) 641 (C.A.), at para. 29. It is relevant because, as Chief Justice Brian Dickson explained, “[w]ork is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and … a contributory role in society,” as well as a “sense of identity, self-worth and emotional well-being”: Reference re Public Service Employee Relations Act (Alta.), 1987 CanLII 88 (SCC), [1987] 1 S.C.R. 313, at p. 368. Thus, losing employment frustrates rehabilitation and reintegration and can lessen the need for specific deterrence, especially for youthful first-time offenders like the appellant: Pham, at para. 12; R. v. McCormick (1979), 1979 CanLII 2958 (MB CA), 47 C.C.C. (2d) 224 (Man. C.A.), at pp. 230-231.
23The trial judge also did not consider the impact of employment consequences on housing, income, caregiving, or the defendant’s family. These broader effects must also be accounted for: 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.
24These consequences merited weight despite the trial judge’s conclusion that they were not unique and were almost inevitable. As Justice Moldaver explained in Suter, common and foreseeable consequences of conviction and sentence must be considered to respect proportionality. Further, Suter’s narrow inevitability exception did not apply because the trial judge found that the employment consequences flowed from the conviction rather than the offence itself.
25Overlooking these consequences affected the sentencing calculus. Although denunciation and deterrence are paramount given the offence’s seriousness and A.H.’s age, proportionality requires considering collateral consequences that increase the sentence’s impact. The appellant’s lack of criminal record, consistent employment, and prosocial life suggest strong rehabilitative potential. The significant hardship to his family warranted moderating the sentence length, and the failure to weigh these factors materially affected the sentence.
(3) Reliance on Unproven Social Media Posts Without Procedural Fairness
26The appellant further submits that the trial judge placed undue weight on alleged social media posts referenced in A.H.’s victim impact statement and the pre-sentence report, treating them as aggravating factors without requiring proof beyond a reasonable doubt. As a self-represented litigant, he was not advised of his right to contest these allegations or to request a hearing pursuant to R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368.
27The Crown contends that the trial judge referred to the posts in assessing the appellant’s lack of remorse rather than as aggravating factors, and that the appellant had an opportunity to respond but chose not to challenge them.
28In my view, the sentencing reasons suggest that the trial judge did treat the alleged posts as aggravating. She referred to them as demonstrating a “complete lack of insight,” emphasized their continuing harm to the victim, and cited them as increasing the need for specific deterrence. These observations appear to have informed the overall severity of the sentence.
29Under s. 724(3)(e) of the Criminal Code and the principles in Gardiner, any fact relied upon to increase the punishment must be proven beyond a reasonable doubt if it is disputed. While sentencing judges may consider credible hearsay for certain purposes—such as assessing remorse—reliance on such material to justify a harsher sentence engages the procedural protections mandated by Gardiner. In this case, the evidence of the posts was unsworn, not tested through cross-examination, and did not satisfy the threshold of proof required for aggravating factors. Had the appellant disputed them, a Gardiner hearing would have been necessary, requiring the Crown to prove the allegations and permitting the appellant to seek leave to cross-examine A.H.: R. v. Phinn, 2015 NSCA 27, 357 N.S.R. (2d) 212, at paras. 48-51; R. v. V.W., 2008 ONCA 55, 89 O.R. (3d) 323, at paras. 29-30.
30In this context, it was important for the sentencing court to ensure that the self-represented appellant was made aware of his right to contest the allegations and of the implications of failing to do so. The Crown rightly acknowledges that sentencing judges have a duty to assist self-represented litigants by clearly explaining procedural options, particularly where their legal significance may not be apparent. Given the serious nature of the charges, the appellant’s lack of familiarity with the sentencing process, and his request for guidance, further explanation would have been warranted: R. v. Eizenga, 2011 ONCA 113, 270 C.C.C. (3d) 168, at paras. 66-67; R. v. Tossounian, 2017 ONCA 618, 354 C.C.C. (3d) 365, at para. 38.
31In the absence of that procedural guidance, and considering the trial judge’s reliance on the alleged posts, the fairness of the sentencing process was compromised. This affected the assessment of the appellant’s rehabilitative prospects and led to an undue focus on specific deterrence. In these circumstances, the sentencing was affected by a material procedural deficiency amounting to an error in principle.
(4) Fitness of the Four-Year Sentence
32Given the errors in principle, I need not determine if the four-year sentence is demonstrably unfit. However, for re-sentencing, I note that the typical range for penetrative sexual assault is three to five years: R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, at para. 68. The four-year sentence fell within this range, reflecting A.H.’s age, the offence’s location, its impact, and s. 718.01’s emphasis on denunciation and deterrence.
33However, the above stated errors skewed the balance of aggravating and mitigating factors and collateral consequences. The appellant’s lack of criminal record, prosocial history, and family responsibilities deserved greater weight, especially alongside the significant collateral consequences for him and his family. The unproven social media posts improperly amplified specific deterrence, overshadowing his rehabilitative potential. These errors in principle require resentencing the appellant even though the sentence falls within the range: Friesen (2020), at para. 27.
F. Re-Sentencing
34Given these errors, this court may re-sentence the appellant without deference to the original sentence: Friesen (2020), at para. 27. The sentence must reflect a balancing of the principles of sentencing in s. 718 of the Criminal Code, aggravating and mitigating factors, and collateral consequences.
(1) Aggravating Factors & Absent Mitigating Factors
35The offending behaviour, penetrative sexual assault, is serious. A.H. was an adolescent, 16 years of age, engaging s. 718.01’s focus on denunciation and deterrence. The six-year age gap, the offence’s occurrence in A.H.’s home, and the significant emotional harm she suffered are aggravating. As well, some mitigating factors are absent. The appellant lacked remorse, and his derogatory comments about A.H. in his sentencing submissions show a lack of insight.
(2) Relevant Mitigating Factors
36The appellant was a youthful first-time offender. He has no criminal record, a prosocial life, a strong work history, and strong family support, which are mitigating. He is willing to engage in counselling, and the offence was a single incident without the additional violence present in other cases relied on by the Crown like R. v. Al-Akhali, 2025 ONCA 229, 447 C.C.C. (3d) 81.
(3) Collateral Consequences
37Incarceration severely impacts the appellant’s family. As their sole provider, his loss of military employment and housing, causes significant financial instability and housing insecurity for his young family. Separation from his three children, whom he actively supports, increases the sentence’s severity and harms innocent third parties. These consequences justify a reduced sentence to minimize family disruption: Habib, at para. 45.
38Further, the evidence at sentencing demonstrated that the appellant experienced significant mental health challenges, including anxiety and depression, and a past psychotic episode. Mental health challenges are relevant collateral consequences because they increase the severity of incarceration and intensify the impact of other collateral consequences, which favours a sentence reduction to achieve proportionality, promote rehabilitation, and protect the public in the long-term: R. v. Wallace (1973), 1973 CanLII 1434 (ON CA), 11 C.C.C. (2d) 95 (Ont. C.A.), at p. 100, approved of in Hills, at para. 135; see also Folino, at para. 29, and McDonald, at paras. 33, 41-44, both approved of in Suter, at para. 56. These challenges are relevant even if they did not contribute to the offending conduct because collateral consequences, unlike mitigating factors, need not diminish moral blameworthiness: Suter, at para. 48; R. v. Shahnawaz (2000), 2000 CanLII 16973 (ON CA), 51 O.R. (3d) 29 (C.A.), at para. 34, leave to appeal refused, [2001] S.C.C.A. No. 24. Thus, the evidence that the appellant’s mental health challenges increased the impact of incarceration, family separation, and the loss of employment and housing on him should be accounted for.
(4) Comparative Case Law
39Sentences for similar offences range from two years less a day to three and a half years: R. v. E.N., 2024 ONCA 472, at paras. 11, 18-19, R. v. D.S., 2024 ONCA 831, at para. 48, R. v. N.D., 2024 ONCA 777, at para. 44, and R. v. A.S., 2025 ONSC 398. In E.N., this court dismissed the Crown’s sentence appeal and upheld a sentence of two years less a day for a youthful first-time offender with family support and strong rehabilitative potential. N.D. and D.S. similarly affirmed reformatory sentences for youthful first-time offenders. In A.S., a 3.5-year sentence was imposed for a sexual assault on a 16-year-old by a 28-year-old with no criminal record. A three-year sentence aligns with cases involving youthful first-time offenders with family support, like E.N. and A.S., while respecting s. 718.01.
(5) Fashioning an Appropriate Sentence
40In this case, I would impose a three-year sentence, which is at the lower end of the A.J.K. range for penetrative sexual assault. This sentence denounces the appellant’s breach of trust and the harm to A.H., who suffered profound emotional damage at a vulnerable age. It reflects the need to prioritize denunciation and deterrence for offences against young people.
41However, a three-year sentence also accounts for the significant collateral consequences. Incarceration separates the appellant from his young children at a critical developmental stage, risking severe adverse effects: McDonald, at para. 43, citing R. v. Stanberry, 2015 QCCQ 1097, 18 C.R. (7th) 87, at paras. 16-26. The loss of his employment and housing exacerbates financial and emotional hardship for his family. These factors increase the sentence’s impact, reduce the need for specific deterrence, and call for restraint to support rehabilitation and preserve the family, especially given the appellant’s status as a youthful first-time offender facing mental health challenges: Habib, at para. 55; R. v. Wesley, 2025 ONCA 51, 175 O.R. (3d) 166, at paras. 100, 102, leave to appeal refused, [2025] S.C.C.A. No. 103; R. v. Richer, 2025 ONCA 439, at paras. 68-70; Wallace, at p. 100. Section 718.01 does not prevent giving significant weight to these factors: R. v. Bertrand Marchand, 2023 SCC 26, 437 D.L.R. (4th) 201, at paras. 28, 123.
42The Crown argues that A.H.’s age requires a sentence above the three-year minimum in A.J.K. The appellant counters that A.J.K. conflicts with Lacasse by imposing a mandatory three-year floor for penetrative sexual assault. I disagree with both parties. A.J.K. aligns with Lacasse by treating ranges as flexible guidelines, not binding minimums, and encourages individualized sentencing based on all circumstances: A.J.K., at paras. 71, 77-78, 85. It also honours the Supreme Court’s teaching in R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at paras. 39-40, and 45-47, that ranges do not build-in or pre-weigh restraint, rehabilitation, mitigating factors, or personal circumstances, and that exceptional circumstances are not required to depart from a range. Thus, below-range sentences are appropriate when mitigating factors or personal circumstances justify them, as seen in E.N., D.S., and N.D.
43Absent the aggravating factors of A.H.’s age and the age gap, a two-year-less-a-day sentence would have been appropriate given the appellant’s rehabilitative prospects and collateral consequences. Accounting for those aggravating factors, a three-year sentence is proportionate, balancing the offence’s gravity, the appellant’s circumstances, and the need to minimize family harm while addressing denunciation and deterrence. I decline to consider the unproven social media posts as an aggravating factor, relying instead on the appellant’s sentencing submissions to assess remorse and insight.
G. Disposition
44I would grant leave to appeal sentence, allow the appeal, and substitute a three-year sentence of imprisonment. The appellant is entitled to credit for time served since March 1, 2024. All ancillary orders, including the s. 486.4 publication ban, remain in effect.
Released: August 6, 2025 “M.T.”
“M. Tulloch C.J.O.”
“I agree. J.C. MacPherson J.A.”
“I agree. Sossin J.A.”
1This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.