COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Habib, 2024 ONCA 830

DATE: 2024-11-12

DOCKET: COA-24-CR-0357

Tulloch C.J.O, Nordheimer and Madsen JJ.A.

BETWEEN

His Majesty the King

Respondent

and

Rehan Habib

Appellant

David Hakim, for the appellant

Martin Heslop, for the respondent

Heard: September 3, 2024

On appeal from the sentence imposed on December 7, 2023 by Justice Robert F. Goldstein of the Superior Court of Justice, with reasons reported at 2023 ONSC 6897.

Tulloch C.J.O.:

A. overview

[1] The appellant, just two days after turning 19, was charged with unlawfully possessing a prohibited loaded handgun in his car, which he impulsively brandished during an altercation with a pizza store employee who had refused to serve him. The appellant’s actions caused the employee to flee the store in fear and also left three bystanders fearing for their safety.

[2] After 19 days of pre-trial custody, the appellant was released on bail with strict house arrest conditions, which he observed without incident. He also turned his life around. He disassociated himself from his previous negative peer group, earned his high school diploma, and commenced a business and finance program at college, which he is on the verge of completing. He also obtained a job and remained gainfully employed as a top performing sales agent for a respected company. During this period, he assumed greater responsibility at his home and became his family’s primary financial supporter, due to his parents’ ailing health and language challenges.

[3] Three years after the appellant was charged, he pled guilty to three gun possession charges, including possessing a handgun for a dangerous purpose. He sought a conditional sentence of house arrest followed by probation. The sentencing hearing proceeded on an Agreed Statement of Facts, except for a hearing pursuant to R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368, to determine whether the appellant had cocked the handgun while chasing the store employee. The appellant did not admit and the Crown did not ask the sentencing judge to find that he intended to shoot the employee, nor was the defence given the opportunity to address this issue during the Gardiner hearing.

[4] The sentencing judge imposed a four-year penitentiary sentence. In addition to finding that the appellant cocked the handgun, he further found, as an aggravating fact, that the appellant actually considered shooting the employee.

[5] The appellant appeals from sentence. He has filed fresh evidence showing that his incarceration caused his family to lose their apartment, harmed both of his parents’ health, and forced his younger sister to interrupt her studies to support the family.

[6] We agree with the sentencing judge that a penitentiary sentence was warranted to denounce the appellant’s dangerous actions and deter others from committing gun crimes. We also agree with the sentencing judge’s conclusion that a conditional sentence of house arrest was unfit and inadequate to achieve these sentencing goals in this case. As this court has long recognized, “[t]he possession and use of illegal handguns … is a cause for major concern,” and “courts have to address the principles of denunciation and deterrence for gun related crimes.” See R. v. Danvers (2005), 2005 CanLII 30044 (ON CA), 199 C.C.C. (3d) 490 (Ont. C.A.), at para. 78.

[7] We nonetheless allowed the appeal, at the conclusion of the hearing, because, in setting the length of the significant sentence imposed, the sentencing judge overlooked several settled principles that the law required him to apply. His finding that the appellant intended to shoot the employee overlooked the appellant’s right to be heard on that issue during the Gardiner hearing. He also overlooked principles that govern the sentencing of first-time youthful offenders, especially the need to practice restraint, prioritize rehabilitation, and account for the appellant’s immaturity, which mitigates his culpability even though it does not excuse his dangerous actions. In addition, the sentencing judge overlooked the family separation consequences by failing to consider the potential damaging effects to the family which, ultimately, were substantiated by the fresh evidence. Finally, he overlooked the principles which govern sentencing multiple offences that arise from the same circumstances.

[8] In all the circumstances, we substituted a three-year sentence, less 29 days of credit for pre-sentence custody. In our view, this significant sentence continues to punish and denounce the appellant’s dangerous behaviour and deter others from following suit while also accounting, as we must, for the principles that the sentencing judge overlooked.

B. background

(1) The Gravity of the Offence

[9] The appellant’s offence was very serious. In the late summer of 2020, only two days after he turned nineteen, he impulsively brandished a loaded prohibited handgun during an altercation with a pizza store employee. After the employee refused to serve him and treated him disrespectfully, the appellant became irate, went to his car, and grabbed a satchel containing a handgun from the trunk. He re-entered the store while three bystanders were present and chased the employee to the back of the restaurant, pulling out the handgun from the satchel as he did so. After he left, he called an associate and told him that he had cocked the handgun. He made contradictory statements concerning his intentions, at times claiming that he had intended to shoot the employee, and elsewhere stating that he intended only to threaten and scare him. The police, who were wiretapping the associate, promptly arrested the appellant two days later and seized the loaded handgun.

[10] Fortunately, the appellant’s dangerous actions did not physically injure anyone. Nonetheless, his actions still caused grave emotional harm to the pizza store employee and risked causing the same harm to the three bystanders, who witnessed this altercation. The employee suffered from depression and anxiety and could not work for over a year, some pizza store staff quit, and customers were afraid to patronize the store.

(2) The Circumstances of the Appellant

[11] The appellant was born in 2001 in Afghanistan, a country which was then torn by armed conflict. He experienced poverty, hunger, and homelessness as a child, and was separated from his father, who left Afghanistan to build a better life for his family and came to Canada. In 2013, at the age of 12, the appellant immigrated to Canada along with his mother and siblings to join his father, hoping for a better, safer, and more secure life. Unfortunately, his family continued to experience severe financial hardship, poverty, and insecurity upon their arrival in Canada. Because his father only qualified for minimum wage jobs, the family’s eight members had to live in a cramped two-bedroom apartment in a subsidized housing community. His parents experienced adjustment issues due to language challenges and, as time went on, their medical issues limited their ability to provide for the family. All too often, the appellant and his siblings went without necessities, and they sometimes attended school hungry or without proper clothing. In addition, the housing project that his family lived in was marked by violence. Months after the appellant arrived in Canada, there was a shooting death outside of his residence, and not too long after, another shooting occurred at his school.

[12] Instead of shrinking from these challenges, the appellant tried to help his parents and his seven siblings build a better life. He began working at fast food restaurants, starting at the age of 15, to supplement his family’s income. He provided emotional support to his parents and five younger siblings, drove them to and from medical appointments and school, and helped his parents access health and social services.

[13] But the appellant ultimately fell into a downward spiral. He struggled academically due to language challenges, a lack of supports, and the need to balance school and the work that he performed to support his family. He also experienced heightened anxiety due to being separated from his friends and extended family in Afghanistan. Out of frustration, he eventually gravitated towards a delinquent peer group where he felt more accepted. Unfortunately, those peers influenced him to skip class, engage in substance and alcohol abuse, and, ultimately, come into conflict with the law. Instead of completing high school, he joined the drug trade at a low level and began carrying the loaded handgun that I previously described as a tool of that trade. This downward spiral culminated when he impulsively brandished the handgun during the altercation with the pizza store employee.

[14] Fortunately for both the appellant and society, his arrest was a turning point. As I have described, he accepted responsibility and pled guilty, cut ties with the negative peers who led him astray, and stopped drinking and using marijuana. He decided to focus on pursuing his education, building a productive career, and caring for and supporting his family. He earned his high school diploma, went to college, and found a good job as a top-performing sales agent for a respected company. He became the primary financial provider to his parents and five younger siblings, as his ailing parents could not work for health reasons, and his two older siblings were supporting their own new families.

(3) The Sentencing Judge’s Decision

[15] At the sentencing hearing, the Crown sought a five-year prison sentence, and the appellant sought a conditional sentence plus probation. The appellant pointed to his youth, successful rehabilitation, and the damaging consequences that incarcerating him for a lengthy period of time would cause his family, including the loss of financial and caregiving support, as well as the stress and adverse health consequences.

[16] The sentencing judge held a hearing to resolve the only contested factual issue, which was whether the appellant cocked the loaded handgun while he was chasing the employee. The Crown did not seek to prove that the appellant intended to shoot the employee.

[17] The sentencing judge sentenced the appellant to four years in prison. He properly emphasized denunciation, general deterrence, and specific deterrence. He determined that a conditional sentence would be inadequate to achieve these objectives. In addition to finding that the appellant cocked the handgun, he also found that the appellant intended to shoot and kill the employee. He considered the appellant’s youth and rehabilitative efforts but treated these as secondary. He did not address the consequences of separating the appellant from his family. He imposed three-year concurrent sentences for the appellant’s simple possession of a loaded handgun, while occupying a motor vehicle, but imposed a one-year consecutive sentence for the appellant’s possession of that firearm for the dangerous purpose of confronting the pizza store employee.

C. Analysis

[18] There is no dispute that the appellant committed grave offences that endangered public safety and required a significant prison sentence. He carried a loaded prohibited firearm as a tool of the drug trade, which by itself normally attracts a prison sentence, in the penitentiary range. See R. v. Smith, 2023 ONCA 620, at paras. 5-7. And by impulsively using that firearm to cause the employee to flee in fear, he endangered the lives of both that employee and the three bystanders, while creating the risk of escalating violence, and also causing grave psychological harm to the employee and a risk of that same harm to the bystanders. See R. v. Hilbach, 2023 SCC 3, 477 D.L.R. (4th) 84, at paras. 53-54. These aggravating features attract higher sentences. See R. v. Samaniego, 2020 ONCA 439, 151 O.R. (3d) 449, at paras. 53-54, aff’d on other grounds, 2022 SCC 9, 466 D.L.R. (5th) 581; Smith, at paras. 1-2 and 13. For all these reasons, and consistent with this court’s jurisprudence, the sentencing judge rightly emphasized the need to denounce the appellant’s actions and deter others from doing the same.

[19] The narrow issue before us is whether, in setting the sentence as four years, the sentencing judge overlooked other settled sentencing principles. I agree with the appellant that he did. The sentencing judge breached the appellant’s right to be heard by finding that the appellant intended to kill the employee without providing him with an opportunity to respond to this new issue. This error invalidates his decision. He also overlooked the principles governing sentencing youthful first-time offenders, the family consequences at sentencing, and sentencing multiple offences that arise from the same circumstances. These errors in principle also invalidate his decision because they impacted the sentence. See R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44. As a consequence, to account for these principles, as described below, we substituted a three-year sentence.

(1) The Sentencing Judge Breached the Right to Be Heard

[20] The appellant argues that the sentencing judge breached the right to be heard by finding as an aggravating fact that he intended to shoot the pizza store employee during the altercation. I agree. Because the Gardiner hearing did not address this issue, the appellant was not given an opportunity to make submissions or adduce rebutting evidence concerning it before the sentencing judge made this finding. Thus, the finding breached the appellant’s right to procedural fairness. This on its own requires us to sentence the appellant afresh because it is not inevitable that the sentencing judge would have made the same finding and imposed the same sentence if he had followed a fair process.

[21] Judges owe an “elevated duty of procedural fairness” to every litigant. See Fontaine v. Canada (Attorney General), 2018 ONCA 1023, at para. 21. This duty originated and applies with greatest force in criminal law and at sentencing because the stakes to the defendant and society are the highest. See Gardiner, at pp. 414-415; Supermarchés Jean Labrecque Inc. v. Flamand, 1987 CanLII 19 (SCC), [1987] 2 S.C.R. 219, at pp. 233 and 237; and A. (L.L.) v. B. (A.), 1995 CanLII 52 (SCC), [1995] 4 S.C.R. 536, at para. 27. Honouring this duty ensures better decision-making, which increases the likelihood that everyone involved feels fairly treated and causes them to accept the decision’s legitimacy, while also strengthening public confidence in the justice system, the rule of law, and our democratic system of government. See Guy Régimbald, Canadian Administrative Law, 3rd ed. (Toronto: LexisNexis Canada Inc., 2021), at pp. 267-270.

[22] Sentencing judges observe the duty of procedural fairness by respecting criminal defendants’ rights to be heard. Parliament has directed courts to honour this human right whenever they apply the Criminal Code, R.S.C. 1985, c. C-46. See Canadian Bill of Rights, S.C. 1960, c. 44, s. 2(e); Lowry and Lepper v. The Queen, 1972 CanLII 171 (SCC), [1974] S.C.R. 195, at pp. 200-202. This right entitles defendants to know the case against them and respond to it by making submissions, calling evidence, and challenging any evidence against them. See R. v. Flett, 2015 MBCA 59, 319 Man. R. (2d) 194, at para. 14; Lowry and Lepper, at p. 204. It bars sentencing judges from finding aggravating facts that the Crown did not advance and the defence did not admit without notifying the parties and giving them an opportunity to make submissions and call responsive evidence. See R. v. Huon, 2010 BCCA 143, at paras. 5-6. To be clear, sentencing judges sometimes can and should raise new issues, but they must respect the right to be heard if they do so. See Baptiste c. R., 2021 QCCA 1064, 73 C.R. (7th) 321, at paras. 38, 46, and 57-59.

[23] The sentencing judge understood the importance of fairness and tried to honour the appellant’s right to be heard. That is why, when the parties advised him that they could not agree whether the appellant cocked the handgun, he held a hearing and heard submissions before deciding this issue.

[24] But despite his best intentions, the sentencing judge breached this right by finding that the appellant intended to shoot and kill the employee. This was a significant finding because intending to kill another person is one of the “most morally blameworthy state[s] of mind.” See R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636, at p. 645. Its significance underscored the importance of honouring the right to be heard. But unlike the case the Crown relies on (LeBreton v. R., 2018 NBCA 27, 47 C.R. (7th) 435, at para. 21), the Crown did not ask the sentencing judge to make this finding. Thus, the sentencing judge should have notified the parties that he might make such a finding and allowed them to respond. He did not do so because he did not realize that it was a new issue. If he had, he would have followed the same process that he had used to find whether the appellant cocked the handgun.

[25] I disagree with the Crown’s argument that it gave fair notice of this issue. The only aggravating fact Crown counsel sought to prove at sentencing was whether the appellant cocked the handgun. While she submitted that his statements concerning his mental state supported this finding, she never asked the sentencing judge to also find that he expected to shoot and kill the employee. That issue is factually and legally distinct from whether the appellant cocked the handgun. See R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 30. Not all defendants who cock handguns expect to kill other people. Sometimes they intend to intimidate, as in R. v. A.S.D., 2019 BCSC 147, at para. 140, aff’d, 2020 BCCA 208, leave to appeal refused, [2020] S.C.C.A. No. 427. This intent, while still gravely blameworthy, is less grave than expecting to kill.

[26] The Crown also argues that the sentencing judge’s reasons for making this finding excuse the fairness error. I disagree. Sufficient reasons, while important, are not a substitute for a fair process. Rather, judges issue reasons after hearing from the parties to show that they have considered their evidence and arguments. See R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 11(1). Because the sentencing judge did not hear from the appellant before making the finding, his reasons could not achieve that purpose.

[27] Because the sentencing judge breached the right to be heard, we must sentence the appellant afresh and without deference to the existing sentence. Under this remedial rule, which this court endorsed in R. v. Cook, 2013 ONCA 467, 307 O.A.C. 280, at paras. 37-38 and 43, the appellant need not show that the breach impacted the sentence as Lacasse requires for errors in principle. This is a specific application of the general rule from Cardinal v. Director of Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643, that breaching the right to be heard invalidates decisions even if a new hearing is unlikely to lead to a different result. Cardinal adopted this rule because the right to be heard is an “independent, unqualified” entitlement to fair treatment that is distinct from the decision’s substantive appropriateness.[^1] See at p. 661; see also Knight v. Indian Head School Division No. 19, 1990 CanLII 138 (SCC), [1990] 1 S.C.R. 653, at p. 674.

[28] The narrow exception to this remedial rule does not apply. Under that exception, there is no need to decide the matter afresh if it is inevitable that the result would be the same if a fair process were followed. See Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, 1994 CanLII 114 (SCC), [1994] 1 S.C.R. 202, at pp. 228-229; R. v. Papadopoulos (2005), 2005 CanLII 8662 (ON CA), 201 C.C.C. (3d) 363 (Ont. C.A.), at paras. 24-26. That is not inevitable here. While there was evidence supporting this finding, other evidence contradicted it. Further, the standard of proof barred the sentencing judge from making this finding unless he determined that there was no reasonable doubt on this issue. See Gardiner, at pp. 414-416. If the sentencing judge had given notice and heard the appellant’s submissions and, potentially, his testimony, he may have been convinced that the appellant did not intend to kill the employee or, even if he was not so convinced, it may still have raised a reasonable doubt. This, in turn, may have caused him to impose a lower sentence because he treated the finding as an important aggravating factor. That possibility is sufficient and, as Cardinal teaches, we should not speculate about what the result of a fair process might have been.

(2) The Sentencing Judge Overlooked the Principles for Sentencing Youthful First-Time Adult Offenders

[29] The appellant also argues that the sentencing judge overlooked some of the principles governing sentencing youthful adult offenders for their first criminal offence. I agree. He did not apply these principles because he incorrectly assumed that the gravity of the offence rendered them secondary.

[30] The courts respect the need to hold young adults accountable for serious crimes that, like the ones the appellant committed, involve significant personal violence. The courts must denounce the actions of young adults who commit these offences and impose sentences that, to the extent possible, adequately deter them from reoffending. General deterrence also gains importance.[^2] Due to these offences’ gravity and public safety risks, significant prison terms may be necessary. It is not always possible to avoid incarceration, impose only a very short prison term, or select a sentence at the low end of the range.[^3] See R. v. Jackson (2002), 2002 CanLII 41524 (ON CA), 58 O.R. (3d) 593 (C.A.), at para. 60; R. v. Borde (2003), 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417 (C.A.), at para. 37; and R. v. Brown, 2015 ONCA 361, 126 O.R. (3d) 797, at paras. 4-5 and 9. These principles may help prevent older, more sophisticated perpetrators and organized criminal groups from preying on and recruiting young adults to commit violent crimes on the theory that those young adults will not be imprisoned if apprehended. See R. v. Ahmed, 2017 ONCA 76, 136 O.R. (3d) 403, at para. 65; R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (C.A.), at para. 147.

[31] Sentencing judges must also respect several other settled principles when sentencing youthful offenders for their first criminal offence. First, they must practice restraint. This requires them to avoid imprisoning young adults when possible. When imprisonment is necessary, it also requires them to make the sentence as short as possible to achieve the principles and objectives of sentencing. See Priest, at pp. 544-546. Second, they must prioritize rehabilitation as the paramount sentencing objective. Where necessary, they must also prioritize specific deterrence. See Brown, at paras. 5 and 10. Third, they cannot focus exclusively on denunciation and general deterrence or elevate those objectives above rehabilitation and specific deterrence. See Borde, at para. 36; Brown, at para. 7. Fourth, they must consider young adults’ reduced moral culpability and the harsher impact that incarceration causes them due to their stage of life. See R. v. Hills, 2023 SCC 2, 477 D.L.R. (4th) 1, at paras. 161 and 165; R. v. Bertrand Marchand, 2023 SCC 26, 487 D.L.R. (4th) 201, at paras. 132 and 152.

[32] Sentencing judges must always give serious and sufficient consideration to all these principles. Merely referring to them as relevant is not always sufficient to show their proper application. Failing to apply or unreasonably underemphasizing them is an error in principle. See Ijam, at para. 52; R. v. Faroughi, 2024 ONCA 178, 435 C.C.C. (3d) 1, at para. 81.

[33] The courts have long followed these principles because they protect society, which Parliament has made the fundamental purpose of sentencing. Because young adults are still maturing, they have “high rehabilitative prospects.” See Bertrand Marchand, at para. 152. Often, the shock of arrest and conviction is a turning point that leads them to reflect on their actions, avoid crime, and choose a pro-social path. Prioritizing rehabilitation thus helps protect society by preventing reoffending. See R. v. Swann, [1975] O.J. No. 137 (C.A.), at para. 4; R. v. Dunkley, [1976] O.J. No. 1663 (C.A.), at para. 4; and R. v. Demeter and Whitmore (1976), 1976 CanLII 1413 (ON CA), 32 C.C.C. (2d) 379 (Ont. C.A.), at pp. 381-382.

[34] In contrast, crushing sentences can endanger society by “harden[ing]” young defendants into an anti-social path. See R. v. Desir, 2021 ONCA 486, at paras. 32 and 47; see also Dunkley, at para. 4. Unfortunately, despite the best efforts of correctional authorities, prisons sometimes struggle to rehabilitate young adults. See Hills, at para. 165. Instead, they can become a “finishing school” for crime because they may contain bad influences to which impressionable young adults are vulnerable, such as drugs, gangs, bullying, violence, and negative peers and mentors who share anti-social values and criminal experience. See R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 16; see also Hills, at para. 165; and R. v. Wismayer (1997), 1997 CanLII 3294 (ON CA), 33 O.R. (3d) 225 (C.A.), at pp. 242-243.

[35] These principles also respect Parliament’s direction to impose proportionate sentences. As Hamiltonheld, at para. 91, proportionality requires courts to consider factors that “decrease the offender’s personal responsibility.” For young adults, immaturity is one such factor. While as adults they are morally responsible for their actions, “[f]ull maturity and all the attributes of adulthood are not magically conferred on young [adults] on their 18th birthdays.” See R. v. Clarke, [2018] EWCA Crim 185, [2018] 1 Cr. App. R. (S.) 52, at para. 5. Instead, young adults are more impulsive, emotionally volatile, and susceptible to negative influences and bad judgment. This can make them less blameworthy than more mature adults. See R. v. Scott, 2015 ABCA 99, 28 Alta. L.R. (6th) 78, at para. 13; Fournier c. R., 2012 QCCA 1330, at paras. 42-45. By accounting for immaturity, courts ensure that turning 18 “does not present a cliff edge for … sentencing.” See Clarke, at para. 5; see also Bertrand Marchand, at para. 132; R. v. Leask (1996), 1996 CanLII 17936 (MB CA), 113 Man. R. (2d) 265 (C.A.), at para. 3.

[36] Proportionality also requires considering the greater impact of incarceration on young adults. See Hills, at para. 135. Incarceration disrupts a transitional stage where they should be “developing … job prospects and relationships that provide the base for a productive life” and learning pro-social skills and values from positive mentors and peers. See R. v. Hutchings, 2012 NLCA 2, 316 Nfld. &. P.E.I.R. 211, at para. 107. Each year is felt more keenly during this critical period of transition. See R. v. Lai, 2006 BCCA 368, 229 B.C.A.C. 236, at para. 104.

[37] This brings me to the sentencing judge’s decision. He had a challenging task. He had to emphasize denunciation and, to a lesser extent, general deterrence because the offences at issue were very serious crimes involving threats that endangered public safety. But he also had to apply the other sentencing principles, especially the need to practice restraint, prioritize rehabilitation, and account for the mitigating effect of the appellant’s immaturity. While these principles apply whenever courts sentence young defendants for their first criminal offence, the need to apply them here was pronounced because the appellant had successfully rehabilitated himself at the time of sentencing. This increased the importance of protecting society by cementing the appellant’s positive trajectory. It required the sentencing judge to mitigate the risk that imprisonment could reverse that trajectory by re-exposing him, at an impressionable stage, to the same bad influences that contributed to his dangerous behaviour.

[38] In my respectful view, the sentencing judge erred in his approach to this challenging task. He rightly emphasized denunciation and, to a lesser extent, general deterrence. But he appears to have gone further and assumed that these goals eclipsed and rendered “secondary” the other governing principles. This was an error. As held in Thurairajah, at para. 41, those other principles “remain important” even for violent first offences.[^4] Applying that reasoning, Brown confirmed that rehabilitation and individual deterrence “remain[]” the primary and paramount objectives for violent first criminal offences. Courts cannot subordinate them to denunciation and general deterrence and “still ha[ve] to impose the shortest term of imprisonment that [is] proportionate.” See Brown, at paras. 4-5, 7 and 10. This court and the Supreme Court have confirmed that these principles from Brown continue to govern. See R. v. Laine, 2015 ONCA 519, 338 O.A.C. 264, at paras. 84-87; Faroughi, at para. 119; Hills, at para. 165; and Bertrand Marchand, at para. 152.

[39] This error led the sentencing judge to overlook some of the settled principles that govern sentencing youthful first-time adult offenders. First, he did not address the need to incarcerate the appellant for as little time as possible to achieve the governing sentencing principles and objectives. Second, he did not treat rehabilitation as a primary and paramount factor. Instead, he treated it as a “secondary” factor and gave general deterrence and denunciation “precedence” over it. Third, by emphasizing specific deterrence, he overlooked that this objective is only a priority “where necessary.” See Thurairajah, at para. 41. His findings concerning the appellant’s successful rehabilitation showed that it was largely unnecessary, as in R. v. Nassri, 2015 ONCA 316, 125 O.R. (3d) 578, at para. 30. Fourth, he overlooked the effect of the appellant’s immaturity, including the impulsive nature of the crime and the appellant’s susceptibility to negative influences, on his culpability. While these factors do not excuse his actions, they are still mitigating. Finally, the sentencing judge did not consider that incarceration would have a harsher impact on the appellant due to his youth because it would interrupt his education and career trajectory.

[40] The sentencing judge’s reasons show that these errors in principle impacted the sentence. Thus, we must sentence the appellant afresh to account for the principles that the sentencing judge overlooked.

(3) The Sentencing Judge Overlooked Family Consequences

[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.

(4) The Sentencing Judge Overlooked the Principles for Sentencing Multiple Offences

[51] The appellant finally submits that the sentencing judge overlooked the principles governing sentencing for multiple offences. I agree.

[52] These principles require imposing a fit and proportionate sentence for each separate offence. They also enable sentencing judges to make those sentences run concurrently if the offences arise out of the same circumstances. See Bertrand Marchand, at paras. 91-95; R. v. McCue, 2012 ONCA 773, 299 O.A.C. 14, at para. 20.

[53] The sentencing judge imposed a one-year consecutive sentence on the count of possession of a firearm for a dangerous purpose. This was the most serious of the offences to which the appellant pleaded guilty. The sentencing judge does not explain why he imposed only a one-year sentence on the most serious of the offences. He also does not explain why the sentence on that offence was imposed consecutively to the sentences on the other offences when all of the offences arose out of the same circumstances.

(5) A Three-Year Overall Sentence Is Fit

[54] This brings me to the appropriate sentence for the appellant, which we must impose without deference to the original sentence and without consideration of the procedurally unfair finding. See R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 27-28. There is no dispute that the sentence must reflect the gravity of the appellant’s dangerous actions, the harm he caused, and the need for denunciation and, to a lesser extent, general deterrence. But it must also reflect the other sentencing principles that the sentencing judge overlooked.

[55] Accounting for all these principles, we imposed a global sentence of three years imprisonment, less 29 days of credit for pre-sentence custody.[^7] This sentence sufficiently punishes and denounces the appellant’s dangerous conduct and, to the extent possible, will help deter others from following suit. It imposes significant consequences, which the appellant will feel keenly because the sentence interrupts his young adulthood, career trajectory, and ability to care and provide for his family. But it also avoids a crushing sentence that would endanger society and the appellant’s successful rehabilitation by re-exposing him to negative influences for a prolonged period at a particularly impressionable stage of his life. In addition, it helps preserve the appellant’s family by mitigating the adverse consequences that his ailing parents and three younger siblings suffer due to his incarceration. Finally, it accounts for his immaturity, impulsivity, susceptibility to bad influences, and the violence and poverty he witnessed or experienced while growing up. These factors do not excuse his dangerous actions but still have a mitigating effect.

[56] This sentence is also necessary to achieve proportionality and parity. In the closest comparator case, Samaniego, this court affirmed a four-year sentence for a defendant who committed a very similar offence. But unlike Mr. Samaniego, who was at least 25 at the time of his offence, the appellant was barely 19 at the time. This reduced his level of maturity and moral blameworthiness relative to Mr. Samaniego and increased the disruptive impact of incarceration on his young adulthood. In addition, unlike Mr. Samaniego, the appellant pled guilty instead of going to trial. Imposing the same four-year sentence on the appellant despite these differences violates parity and proportionality. See Friesen, at para. 32.

[57] As I have said, in light of these errors, we imposed a three-year total sentence. To that end, I would impose a three-year sentence for the most serious offence, possessing the firearm for a dangerous purpose. Two years is a fit sentence for possessing a loaded prohibited firearm. I would impose a one-year sentence for knowingly being present in a motor vehicle that contains a prohibited firearm, which carries a lower maximum sentence than possessing a loaded prohibited firearm. Both these sentences should run concurrently to the sentence for the most serious offence. Because the Crown did not prove that the appellant possessed the handgun for a long period of time before he used it to threaten the employee, all three offences were temporally interlinked and arise out of the same criminal transaction. See, e.g., R. v. Downey, 2006 ABCA 108, 384 A.R. 99, at paras. 2 and 6. This is consistent with the fact that Parliament prohibits possessing loaded prohibited firearms in part to prevent people from using them impulsively, as the appellant did by possessing the handgun for a dangerous purpose. See Nur, at para. 137, per Moldaver J. (dissenting, but not on this point).

D. conclusion

[58] These reasons explain why we allowed the sentence appeal, vacated the sentence imposed by the sentencing judge, and imposed an overall sentence of three years’ custody, less 29 days of credit for pre-sentence custody, broken down between the individual counts as set out above.

Released: November 12, 2024 “M.T.”

“M. Tulloch C.J.O.”

“I agree. I.V.B. Nordheimer J.A.”

“I agree. L. Madsen J.A.”

[^1]: The Supreme Court’s decision in R. v. Nahanee, 2022 SCC 37, 474 D.L.R. (4th) 34, does not replace this remedial rule with Lacasse’s error in principle plus impact test. The Nahanee majority held that the Lacasse test governs the error of failing to notify the parties before imposing a harsher sentence than the Crown sought because this error does not breach the right to be heard. See at paras. 52, 54-55, and 57. The majority did not disturb or disagree with Justice Karakatsanis’s restatement of Cardinal’s rule that, if the right to be heard is breached, the decision is invalid even if the appellant cannot show impact. See Nahanee, at para. 102, per Karakatsanis J. (dissenting, but not on this point). That is why, following Nahanee, this court has applied that rule rather than the Lacasse test to remedy breaches of the right to be heard at sentencing, as in R. v. Smith, 2023 ONCA 500, 89 C.R. (7th) 297, at paras. 43-47.

[^2]: Of course, as held in R. v. Thurairajah, 2008 ONCA 91, 89 O.R. (3d) 99, at paras. 42 and 44, general deterrence is “less[]” important than denunciation when sentencing young adults for their first criminal offence. This is the case because, due to their lack of maturity, young adults are unfortunately less likely to be deterred by sentences imposed on other people than more mature adults would be. See R. v. D.E.S.M. (1993), 1992 CanLII 6009 (BC CA), 80 C.C.C. (3d) 371 (B.C.C.A.), at p. 377.

[^3]: In contrast, courts are reluctant to sentence young adults who did not commit a serious crime involving significant personal violence to prison for their first criminal offence. Because these offences do not pose the same grave public safety threat as serious crimes involving significant personal violence, general deterrence “play[s] little, if any, role” (Thurairajah, at para. 41) and the role of denunciation is also limited. See R. v. Lawrence (2005), 2005 CanLII 18836 (ON CA), 197 O.A.C. 364 (C.A.), at para. 3. A suspended sentence and probation, a conditional sentence, or a very short prison term followed by probation best achieve rehabilitation and specific deterrence in these cases. See R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 30 O.R. (3d) 538 (C.A.), at pp. 543-544; R. v. Ijam, 2007 ONCA 597, 87 O.R. (3d) 81, at paras. 55-60.

[^4]: Some Superior Court decisions have misread Thurairajah as creating an “exception” to the principles governing sentencing young defendants for their first criminal offence that I described earlier. See, e.g., R. v. Barrett, 2012 ONSC 82, at para. 25. But this contradicts Thurairajah’s holding that these principles “remain important.” See at para. 42. The “exception” Thurairajah mentions merely distinguishes the greater role that denunciation and, to a lesser extent, general deterrence play in cases involving significant personal violence from these objectives’ more limited role in sentencing young defendants for a non-violent first criminal offence. See Thurairajah, at paras. 41-42. Brown confirms that Thurairajah did not create any broader exception. See Brown, at paras. 4-5, citing Thurairajah, at paras. 41-42.

[^5]: Some Ontario Court of Justice decisions have misread Spencer as establishing that courts can neither consider family separation consequences when sentencing defendants for grave offences nor use them to justify departure from a range. See, e.g., R. v. T.G., 2015 ONCJ 751, at pp. 20-22; R. v. Mckie, 2018 ONCJ 103, at para. 61. But this contradicts Spencer’s holding that the court had to “preserve the [defendant’s] family as much as possible” despite the gravity of the defendant’s cocaine importation offence, as well as its use of the family separation consequences to determine the length of sentence. See at paras. 47-49. And rather than establishing a rule against relying on family separation consequences to depart from a range, Spencer only made a case-specific determination that the departure from the range that the defendant sought in that case was inappropriate. See at para. 47. That is why, following Spencer, this court confirmed that family consequences can sometimes justify departure from a range (L.C., at para. 21), which is not an error in principle and is sometimes necessary to impose a proportionate sentence. See R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at paras. 32-36.

[^6]: I would admit the fresh evidence showing the adverse consequences that incarcerating the appellant has caused his family. The Crown does not dispute that it is relevant to the family separation issue, reasonably capable of belief, and could not have been adduced at the sentencing hearing. Further, while some of it is confirmatory of the expected consequences of incarcerating the appellant on his family, the impacts of his incarceration on his parents’ health and his younger sister’s education are completely new, heighten the adverse consequences to his family, and could reasonably impact the fitness of the sentence. See Faroughi, at paras. 88-90.

[^7]: Both parties agree that we should grant 29 days of credit at a 1:5-to-1 ratio for the 19 days that the appellant spent in pre-sentence custody, which the sentencing judge overlooked.