



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), 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. Chaimowitzs 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 appellants 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 appellants immigration status. The trial judge concluded that he would not
    consider that issue because any collateral consequences regarding the
    appellants 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 appellants background, his mental
    health issues as outlined in Dr. Chaimowitzs 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
    courts 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 supervisors 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.


