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| John L. Hill |
That question was at the heart of Ontario Chief Justice Michael Tulloch’s decision when D.B. appealed his four-year sexual assault sentence (R. v. D.B., 2025 ONCA 577).
D.B. was 22 when he developed a friendship with 16-year-old A.H. while working at McDonald’s in 2018. A.H. invited him home. They kissed consensually, but when A.H. refused sexual intercourse, D.B. proceeded regardless, causing A.H. significant distress. Two years later, A.H. reported the incident to the police, leading to D.B.’s charge and eventual conviction for sexual assault in November 2023. The trial judge accepted A.H.’s account and rejected the appellant’s consent claim.
At sentencing, the Crown requested a four-year penitentiary term, highlighting the breach of trust and impact on A.H. D.B. was self-represented. He asked for a community sentence, citing his clean record, military service, role as a father and mental health issues. Despite these factors and supportive letters, the judge identified aggravating circumstances: A.H.’s age, the offence occurring in A.H.’s home, substantial harm and D.B.’s lack of insight. On March 1, 2024, nearly six
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Counsel for D.B. on the appeal argued that the trial judge erred in not considering collateral consequences before imposing the four-year term. The chief justice began the unanimous three-panel decision by pointing out the principles governing collateral consequences. Collateral consequences individualize sentencing.
As established in Pham and reinforced in R. v. Suter, 2018 SCC 34, courts must consider the broader impacts of a conviction or sentence — such as job loss, family disruption or immigration consequences — which can make rehabilitation more challenging and reduce the need for harsh punishment. Judges are required to consider these effects when crafting a proportionate sentence under s. 718.1 of the Criminal Code. Ignoring them may result in an unfit sentence.
A broad and generous approach is required. Collateral consequences include any physical, emotional, social or financial effects on the offender, even if they are foreseeable or common, such as deportation or family separation. These impacts can still be mitigated, even if not unique.
As explained in Suter, the “inevitability exception” is narrow: only consequences that are almost inevitable due to the nature of the offence (e.g., injury from impaired driving) may have limited mitigating value. This exception does not apply to consequences arising from the justice system’s response (e.g., prison, deportation), which must still be considered.
In essence, courts must consider how punishment uniquely affects the individual, especially when it exacerbates disadvantage, and cannot dismiss foreseeable impacts simply because they are common.
The chief justice wrote that the trial judge erred by not meaningfully addressing the collateral consequences of family separation, which is a required consideration even in serious offences. This failure materially affected the sentence. He cited R. v. Habib, 2024 ONCA 830, R. v. Simoes, 2014 ONCA 144 and R. v. Middleton, 2009 SCC 21.
Judges are not required to demand detailed or expert evidence to recognize the adverse effects of separating parents from their young children. Basic, undisputed information from sources such as the pre-sentence report, agreed-upon facts or trial record is generally sufficient. Here, D.B. was the sole provider for a partner and three children, including two very young children. His incarceration would lead to financial instability, housing loss and emotional hardship — especially for the children. The trial judge ignored these impacts, despite evidence in the pre-sentence report, which was an error.
The judge wrongly assigned “no weight” to D.B.’s military job loss, which is a significant collateral consequence. Employment supports financial stability, self-worth and rehabilitation. Its loss affects not only the offender but also their family and future reintegration (R. v. Pham, 2013 SCC 15; R. v. Folino (2005), 77 O.R. (3d) 641 (C.A.); R. v. McCormick (1979), 47 C.C.C. (2d) 224 (Man. C.A.)).
The broader effects of job loss — on housing, income, caregiving and family well-being — were also ignored. These must be considered to craft a fit and proportionate sentence (R. v. Nikkanen, (1999), 140 C.C.C. (3d) 423 (Ont. C.A.)).
The trial judge made errors in principle by failing to account for the serious collateral consequences, including family separation and job loss, and misapplied the relevant legal standards.
When relevant factors are considered, the appeal court found that two years less a day would have been appropriate. Still, considering the aggravating factor of A.H.’s age, a three-year sentence minimizes family harm while addressing denunciation and deterrence.
The sentence was reduced to three years with credit for time served since March 1, 2024. The decision was released on Aug. 6, 2025. This means D.B. would be immediately eligible for parole, or he could serve another 206 days until statutory release.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books) was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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