COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mansaray, 2021 ONCA 894

DATE: 20211213

DOCKET: C69464

MacPherson, Coroza and Sossin JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kelleh Junior Mansaray

Appellant

Kelleh Junior Mansaray, acting in person

Erin Dann, appearing as duty counsel

Erin Carley, for the respondent

Heard: December 9, 2021

On appeal from the conviction entered by Justice David L. Edwards of the Superior Court of Justice on February 22, 2019, and from the sentence imposed on February 17, 2021, with reasons for sentence at 2021 ONSC 1188.

REASONS FOR DECISION

[1] The appellant was convicted of possession of cocaine for the purpose of trafficking; possession of proceeds of crime not exceeding $5,000; and breach of a probation order. He was sentenced to a custodial sentence of two years less one day, followed by 24 months of probation. The trial judge also made several ancillary orders. The appellant has abandoned his appeal from conviction but pursues his sentence appeal.

[2] On behalf of the appellant, duty counsel raises three grounds of appeal.

[3] First, the trial judge found as an aggravating factor that the appellant had lied during the trial. Duty counsel submits that it is well established that the manner in which an accused person presents his or her defence is not to be treated as an aggravating factor: see R. v. Kozy (1990), 1990 CanLII 2625 (ON CA), 58 C.C.C. (3d) 500 (Ont. C.A.).

[4] Second, the trial judge failed to account for potential collateral immigration consequences.

[5] Third, in rejecting a conditional sentence, the trial judge erred in his assessment of the potential risk to the community by failing to take into account a relevant factor – namely that the appellant had been on bail for a significant period of time without any further offence.

[6] The appellant has a sympathetic background. The trial judge accepted that when the appellant was approximately ten years old, the appellant was abducted and held hostage as a child soldier in the Revolutionary United Front in Sierra Leone. As a child soldier he was required to kill and torture. Discipline was imposed on him through beatings. Eventually the appellant escaped and immigrated to Canada where he lived with his father.

[7] At the request of the defence, the trial judge ordered a report pursuant to s. 21(1) of the Mental Health Act, R.S.O. 1990, c. M.7. Dr. Chaimowitz provided a report and found that the appellant continues to experience symptoms of posttraumatic stress. Dr. Chaimowitz concluded that the appellant was a moderate to high risk to reoffend generally and a high risk to reoffend violently and that the appellant would likely benefit from an intensive, comprehensive treatment program for substance abuse, characterological vulnerabilities, and difficulty with anger and aggression.

[8] After summarizing Dr. Chaimowitz’s report in his reasons, the trial judge noted that it was “impossible to imagine the horrors that [the appellant] experienced as a child. The mental health assessment confirms that the experience continues to impact upon him today.”

[9] On appeal, the appellant has tendered two letters as fresh evidence. The first letter is confirmation from The Salvation Army that the appellant has been accepted into the Ottawa Booth Centre Addiction Services Programs. The program is a residential treatment program that is staffed twenty-four hours a day and includes counselling for anger management and emotional health. The second letter is from a social worker with the Ministry of the Solicitor General. The letter outlines the steps that the appellant has taken and progress made while at the Niagara Detention Centre, by participating in programming and counselling. According to the social worker the appellant has been participating in ongoing counselling and has demonstrated significant insight into his challenges. The social worker notes that the appellant appears to be highly dedicated in his efforts to address his mental health, substance abuse and criminal behaviour.

[10] The respondent very fairly concedes the first ground of appeal. However, the respondent submits that the error is inconsequential because the sentence imposed by the trial judge was fit.

[11] We are persuaded that the trial judge erred in principle in relying on the conduct of the appellant’s defence as an aggravating factor. We are also persuaded that the trial judge erred by not considering the potential collateral effect a sentence of custody would have on the appellant’s immigration status. The trial judge concluded that he would not consider that issue because any collateral consequences regarding the appellant’s immigration status were raised only in passing. In fairness to the trial judge, defence counsel in his sentencing submissions did not provide meaningful submissions on this issue. In contrast, we have had the advantage of hearing comprehensive submissions made by duty counsel on this issue.

[12] In our view, these errors had an impact on the sentence imposed. Therefore, it falls on this court to consider a fit sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.

[13] Given the appellant’s background, his mental health issues as outlined in Dr. Chaimowitz’s report, the fresh evidence and the potential immigration issues that could arise because of the custodial sentence, we cannot say that a conditional sentence of imprisonment is unfit.

[14] Accordingly, we allow the sentence appeal and impose a conditional sentence of 2 years less one day on the following agreed upon conditions:

• Keep the peace and be of good behaviour;
• Appear before the court as directed;
• Report to a supervisor within 1 week after this court’s decision is released and thereafter as directed by the supervisor;
• Remain in Ontario, unless written permission to leave Ontario is first obtained from the court or the supervisor;
• Notify the court or the supervisor in advance of any change of name or address and promptly notify the court or the supervisor of any change in employment or occupation;
• Reside at the Salvation Army Addictions Services Program (the Anchorage Residential Treatment Program) in Ottawa, or another residential treatment program approved by the supervisor; and after discharge from the residential treatment facility, reside at an address approved in advance by the supervisor;
• Follow all rules and requirements of any residential treatment program where you are residing;
• Attend and actively participate in all assessments, counselling or rehabilitative programs as directed by the supervisor and complete them to the supervisor’s satisfaction;
• Sign release forms as required to enable the supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programs;
• Abstain from the consumption of drugs or alcohol except in accordance with a medical prescription; and
• Abstain from owning, possessing or carrying a weapon.

[15] For these reasons, we admit the fresh evidence. We dismiss the conviction appeal as abandoned. We allow the sentence appeal, set aside the custodial sentence imposed by the trial judge, and impose a conditional sentence of imprisonment on the terms agreed upon by the parties and effective as of the date when sentence was imposed by the trial judge. The probation order and ancillary orders as imposed by the trial judge stand.

“J.C. MacPherson J.A.”

“S. Coroza J.A.”

“Sossin J.A.”