



WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the
Criminal
    Code
provide:

486.4(1)       Subject to subsection (2),
    the presiding judge or justice may make an order directing that any information
    that could identify the victim or a witness shall not be published in any document
    or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25, s.
    22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in paragraph (a).

(2)     In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

6.

(2.2) In proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice shall

7.

(a) as soon as feasible, inform the victim of their right to make an
    application for the order; and

8.

(b) on application of the victim or the prosecutor, make the order.

(3)     In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
    13, s. 18..

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McKenzie, 2017 ONCA 128

DATE: 20170215

DOCKET: C62617

Weiler, Pepall and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Carlington McKenzie

Appellant

Eva Tach
é
-Green, for
    the appellant

Kathleen E. Farrell, for the respondent

Heard: January 11, 2017

On appeal from the sentence imposed on September 1, 2015
    by Justice Fletcher Dawson of the Superior Court of Justice, with reasons
    reported at 2015 ONSC 5671.

Trotter J.A.
:

A.

overview

[1]

The appellant was convicted of sexual assault, contrary to s. 271(1)(b)
    of the
Criminal Code
, for which he received a sentence of nine months
    imprisonment, followed by two years of probation. He appeals on the basis that
    the sentence is unfit, especially in light of the immigration consequences he
    faces under the
Immigration and Refugee Protection Act
, S.C. 2001, c.
    27 (
IRPA
).

[2]

For the following reasons, I would grant leave to appeal but would
    dismiss the appeal.

B.

the Facts of the offence

[3]

The appellant was found guilty after a judge-alone
    trial. At the time of the offence, the appellant, 33, and the complainant, 19,
    were co-workers at a restaurant. The incident giving rise to the charge
    occurred at a work Christmas party. They both consumed alcohol and danced with each
    other; as the complainant described it, she was, winding and grinding on him.
    The appellant touched the complainants buttocks and thighs. It made her feel
    uncomfortable, but she did not tell him that. The appellant and the complainant
    kissed on the lips, even though she did not wish to do so. She did not tell the
    appellant that she did not want him to kiss her. The appellant pulled the
    complainant into a washroom and then shut and locked the door. The appellant
    kissed the complainants neck, without objection. He pulled his pants down and
    then the complainants, turned her around, and pressed his penis into her anus,
    achieving partial penetration. At the time, the victim said, No, no, no. She
    said she felt pain. The penetration lasted for 20 to 35 seconds.
[1]
When someone knocked on the
    bathroom door, the incident came to an end.

[4]

The appellant testified, claiming that the
    complainant consented. The trial judge found that the complainant did not
    consent, and rejected the defence of honest but mistaken belief in consent, holding
    that the appellant had failed to take reasonable steps to ascertain whether the
    complainant was consenting, as required by s. 273.2(b) of the
Criminal
    Code
.

[5]

In her Victim Impact Statement, the complainant said
    that she felt that the appellant took advantage of her that night. She reported
    feeling pain after the fact. The trial judge held that, while the offence was
    significant, the impact on the complainant fell lower down on the scale than
    in many other cases.

C.

The Circumstances of the Appellant

[6]

The appellant was 35 at the time of sentencing. He was born in Jamaica
    and came to Canada when he was about 20. His is a permanent resident.

[7]

The appellant has worked regularly since his arrival. At the time of
    sentencing, he worked in a factory that makes fibreglass pallets. He also owns a
    barbershop and beauty supply store, employing others.

[8]

The appellant is the father of two children born in Canada, who were 10
    and 3 at the time of sentencing. He remains in a stable relationship with the
    mother of his youngest child. He provides financial and emotional support to both
    children, and sends money to his mother in Jamaica.

[9]

A Pre-Sentence Report (PSR) was prepared. The trial judge observed at
    para. 25: overall, the pre-sentence report is positive. After considering the
    input of the appellants friends and family, who consider the appellant to be
    an upstanding individual, the author of the PSR said:

The subject continues to maintain his innocence, which could
    indicate a lack of insight into his offence behaviour. He admits to having
    sexual intercourse with the victim, however maintains that the act was
    consensual. He stated that he is sorry for his actions (referring to his
    infidelity), as it has triggered trust issues in his current relationship.

. . .

He admitted to engaging in sexual behaviour with the victim but
    denied it was done in a forceful manner; noting that there was consent from the
    victim. Minimization of the subjects actions was present throughout the
    interview, as he alluded to the victim being flirtatious with him.

. . .

Victim awareness by the subject is non-existent as he [is] not
    of the belief that he did anything illegal; only unfaithful.

[10]

The
    trial judge said, at para. 24, that this attitude reflected a lack of remorse,
    to which he ascribed no weight as an aggravating factor.

D.

The TRIAL Judges Reasons

[11]

The
    trial judge provided thorough Reasons for Sentence. After referring to the
    relevant sections in Part XXIII (Sentencing) of the
Criminal Code
, he
    characterized the offence as a significant sexual assault, recognizing that
    the principles of denunciation and general and specific deterrence must be
    given significant weight. The trial judge observed at para. 31: while the
    complainant was not a minor, I note that there was a considerable age difference
    between the accused and the complainant. He accepted that the offence was out
    of character and that the appellant had excellent prospects for
    rehabilitation.

[12]

The
    trial judge reviewed the authorities provided by the Crown, in support of its
    submission that a period of imprisonment between two to four years should be
    imposed. He found that the misconduct sanctioned in those cases was more
    serious than the appellants behaviour. The defence submitted that the
    appellant receive a sentence of six months less a day. However, the trial judge
    noted (at para. 27) that he had not been referred to any case which would take
    the range of sentence for an offence similar to this one down to the area of
    six months.

[13]

Ultimately,
    the trial judge concluded that nine months imprisonment was at the bottom of
    the range that would be appropriate in this case. He then turned his attention
    to the immigration consequences at stake for the appellant at para. 52:

After anxious consideration, I have come to the conclusion that
    to impose a sentence of six months less a day, as sought by the accused, would
    be to impose a sentence that is demonstrably unfit having regard to the degree
    of violation to the sexual integrity of the complainant. I wish to add,
    however, that should I be found to have been in error in this regard, I would
    have imposed a sentence if I felt it was within an appropriate range of
    sentence due to the impact deportation will have on the accused.

E.

The Positions of the Parties

[14]

The
    appellant argues that the trial judge made two errors. First, he misconstrued
    the facts in
R. v. Dahouky
, [2008] O.J. No. 1665 (S.C.J.), affd 2009
    ONCA 453, 83 W.C.B. (2d) 311, and then placed too much reliance upon it,
    essentially creating an artificial nine-month floor for offences of this
    nature. Secondly, the appellant contends that the trial judge erred in his
    approach to the immigration consequences triggered by the sentence he imposed.

[15]

The
    respondent agrees that the sentencing judge misapprehended the facts in
Dahouky
,
    but that the misapprehension was inconsequential. The respondent further
    submits that the trial judge did not use this decision to create an artificial
    floor of nine months imprisonment. Lastly, the respondent submits that the
    sentencing judge did not err in his consideration of the immigration consequences
    and that the sentence he imposed was fit.

F.

Analysis

(1)

Establishing an Artificial Sentencing Floor

[16]

I
    agree that the trial judge misapprehended the facts in
Dahouky
, but
    only to a limited degree. He erred when he said that Dahouky and the complainant
    were in a relationship. Moreover, the trial judge failed to realize the
    considerable delay between the consensual and non-consensual activity between
    the accused and the complainant. Arguably, the circumstances of the offence in
Dahouky
were more serious than the trial judge appreciated.

[17]

However,
    the trial judges reliance on
Dahouky
is problematic for a different
    reason, one that was not raised on appeal. Referring to that case, the trial
    judge said at para. 43: [a]n appeal by the accused, seeking a conditional
    sentence was dismissed. The Court of Appeal made no adverse comment about the
    length of the custodial sentence imposed at trial. However, despite reference
    in this courts endorsement to an appeal from both conviction and sentence, an
    examination of the court file reveals that the sentence appeal had been
    abandoned in advance of the hearing of the appeal. Consequently, this courts
    endorsement has no precedential value on the sentencing issue.

[18]

I
    disagree with the appellants submission that the trial judge concluded that
Dahouky
created a sentencing floor and felt that he had no choice but to impose a
    nine-month sentence. However, I cannot say that the trial judges reliance on
    this case had no impact on his analysis. At one point in his reasons, he said
    at para. 43: [b]ased on
Dahouky
, I conclude a sentence of nine months
    is within the range of sentence that is appropriate on these facts. Shortly
    afterwards, he said at para. 45: it seems to me that nine months represents
    the bottom of the range of sentence that would be appropriate in this case
    based on all of the facts.

[19]

In my opinion, however, despite the trial judges misplaced reliance
    on this courts endorsement in
Dahouky
, the
    sentence imposed was still fit in all of the circumstances.

Dahouky
was just one of the numerous cases the
    trial judge relied upon to craft the sentence he ultimately imposed. While this
    court did not affirm the sentence imposed by the trial judge in
Dahouky
,
    the trial judge was entitled to rely upon the trial judges reasons in
Dahouky
,
    along with other trial and appellate decisions, in determining the appropriate
    range of sentence.

[20]

Relying
    on other decisions from this court (
R. v. Garrett
, 2014 ONCA 734, 117
    W.C.B. (2d) 562;
R. v. Rand
, 2012 ONCA 731, 104 W.C.B. (2d) 10; and
R.
    v. Thurairajah
, 2008 ONCA 91, 89 O.R. (3d) 99), the Crown at trial requested
    a penitentiary sentence. The trial judge was not persuaded that the
    significant sexual assault committed by the appellant was as serious as the
    misconduct in those cases. He said that (at para. 37), had there been a fully
    completed act of vaginal or anal intercourse with the complainant in the face
    of her saying No, no, no, then three years imprisonment would have been entirely
    appropriate. However, given that there was only partial penetration, and in
    light of the activity that preceded the assault, the case was somewhat less
    serious than the assaults in the cases referred to by the Crown.

[21]

The
    mitigating value attributed to these offence features (
i.e.
, partial
    penetration and prior consensual behaviour) is doubtful, especially when the
    assault only came to an end when someone knocked on the bathroom door. Having
    expressed a different view in his Reasons for Judgment (
i.e.
, the
    appellant did not stop because the complainant said no), in his Reasons for
    Sentence the trial judge said at para. 10, I am not certain the encounter
    would have continued if that knocking had not occurred. I mention these aspects
    of the trial judges reasons to demonstrate that every possible benefit was
    extended to the appellant in terms of the manner in which his offending was
    characterized.

[22]

Ultimately,
    it must be determined whether the sentence imposed upon the appellant was demonstrably
    unfit: see
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at
    paras. 51 to 53. The sexual offence was serious, one involving anal penetration,
    which is generally treated as an aggravating circumstance: see
R. v. R.
    (M.)
, 2014 ONCA 484, 114 W.C.B. (2d) 471, at para. 6. Given the
    superficial relationship between the appellant and the complainant, their age
    difference, the complainants alcohol consumption, the circumstances in which
    the sexual assault took place, and the impact on the complainant, the trial
    judge was right to characterize this sexual assault as significant. Leaving
    aside immigration consequences for the moment, which I will return to below,
    many aspects of the appellants background and life circumstances were
    positive, and the trial judge did take them into account. However, these had to
    be balanced against the appellants troubling lack of insight into his own
    behaviour, and the harm he caused the complainant.

[23]

Every
    case is unique. Despite the existence of sentencing ranges for particular types
    of offending, [t]he determination of a just and appropriate sentence is a
    highly individualized exercise that goes beyond a purely mathematical
    calculation: see
Lacasse
, at para. 58. The trial judge undertook this
    analysis and imposed a sentence that is supported by other decisions of this court:
    see
Garrett
, at paras. 15-23;
R. v. Crespo
, 2016 ONCA 454,
    337 C.C.C. (3d) 439; and
R. v. R. (C.)
, 2010 ONCA 176, 260 O.A.C. 52.

(2)

Immigration Consequences: Applying
Pham


[24]

The
    immigration consequences of the appellants offending are extremely serious.
    Under s. 36(1)(
a
) of the
IRPA
, a permanent resident is
    inadmissible on grounds of serious criminality. When
R. v. Pham
,
    2013 SCC 15, [2013] 1 S.C.R. 739 was decided, s. 64(2) provided that a removal
    order based on inadmissibility due to serious criminality could not be
    appealed to the Immigration Appeal Division (IAD) 
with
    respect to a crime that was punished in Canada by a term of imprisonment of at
    least two years. Upon appeal, the IAD can stay a removal order if it is
    satisfied that sufficient humanitarian and compassionate considerations
    warrant special relief in all of the circumstances of the case:
IRPA
,
    s. 68(1). This provision has since been amended by
s. 24 of the
Faster
    Removal of Foreign Criminals Act
, S.C. 2013, c. 16, which
    ousts the right to appeal with respect to a crime that was punished in Canada
    by a term of imprisonment of at least six months or that is described in
    paragraph 36(1)(b) or (c).

[25]

The
    appellant submits that the trial judge erred in the manner in which he
    approached this issue. He contends that the trial judge ought to have
    considered the immigration consequences that he faced along with all of the
    other personal factors in determining the appropriate sentence. Instead, the
    trial judge, wrongly in the appellants submission, determined what the appropriate
    sentence should be, and then considered whether it would be appropriate to
    reduce the sentence to avoid the impact of the
IRPA
. The appellant
    argues that the erroneous two-step approach employed by the trial judge resulted
    in a sentence that was manifestly unfit. I disagree.

[26]

In
Pham
,
Wagner J., writing for the court, discussed the
    interaction of immigration consequences with the principles of sentencing set
    out in ss. 718, 718.1 and 718.2 of the
Criminal Code
. Referring to proportionality,
    parity, rehabilitation and denunciation, Wagner J. held at paras. 11, 14 and 16:

In light of these principles, the collateral consequences of a
    sentence are any consequences for the impact of the sentence on the particular
    offender. They may be taken into account in sentencing as personal
    circumstances of the offender. However, they are not, strictly speaking,
    aggravating or mitigating factors, since such factors are by definition related
    only to the gravity of the offence or to the degree of responsibility of the
    offender (s. 718.2(1)(
a
) of the
Criminal Code
). Their relevance
    flows from the application of the principles of individualization and parity. The
    relevance of collateral consequences may also flow from the sentencing
    objective of assisting in rehabilitating offenders (s. 718(
d
) of
    the
Criminal Code
). Thus, when two possible sentences are both
    appropriate as regards the gravity of the offence and the responsibility of the
    offenders, the most suitable one may be the one that better contributes to the
    offenders rehabilitation.

. . .

The general rule continues to be that a sentence must be fit in
    having regard to the particular crime and the particular offender. In other
    words, a sentencing judge may exercise his or he discretion to take collateral
    immigration consequences into account, provided that the sentence that is
    ultimately imposed is proportionate to the gravity of the offence and the
    degree of responsibility of the offender.

. . .

These consequences must not be allowed to dominate the exercise
    or skew the process either in favour of or against deportation. Moreover, it
    must not lead to a separate sentencing scheme with a
de facto
if not a
de jure
special range of sentencing options where deportation is a
    risk.

[27]

In
    linking immigration consequences to the principles of sentencing, Wagner J. did
    not prescribe a preferred methodology for determining this issue.

[28]

The
    appellant places great reliance on
R. v. Nassri
, 2015 ONCA 316, 125
    O.R. (3d) 578, a decision referred to by the trial judge. That decision
    concerned an appeal from a sentence of nine months imprisonment imposed for
    robbery and possession of a weapon for a dangerous purpose. Nassris situation
    under the
IRPA
was the same as the appellants in this case. However,
    the trial judge in
Nassri
was not apprised of Nassris status. On
    appeal, this court received fresh evidence concerning his immigration
    circumstances.

[29]

Writing
    for this court, Sharpe J.A. referred to para. 14 from
Pham
, quoted
    above, and held: Wagner J. explained, at para. 14, a sentencing judge should
    therefore first determine whether the sentence that avoids the collateral consequences
    is even a possibility (at para. 28). Ultimately, this court reduced Nassris
    sentence of imprisonment to six months less fifteen days.

[30]

I
    do not read
Nassri
or
Pham
as requiring a specific
    methodology for dealing with the potential immigration consequences of an
    offenders sentence. I acknowledge that there is language in
Pham
that
    supports the appellants preferred approach  considering immigration status as
    a personal circumstance of the offender (paras. 11 and 20). However,
Pham
also
    contains language that supports an approach whereby potential immigration
    consequences are factored into the equation once the sentencing judge has made a
    determination of what would otherwise be an appropriate sentence. Wagner J.
    uses the following terms or expressions, all of which signal movement from such
    a fixed point: varied sentence (para. 18); reduced sentence (para. 18);
    reduction (para. 20); and adjust (para. 20).

[31]

There
    are merits in both approaches. The approach employed by the trial judge avoids
    the need to deal with immigration consequences in circumstances when it is
    unnecessary. For example, where an otherwise fit sentence falls below the
    current
IRPA
threshold, an offenders immigration status is irrelevant
    for sentencing purposes. Similarly, where a sentencing judge determines that a
    substantial penitentiary term is warranted, there is little point in
    considering the offenders immigration status in the manner contemplated in
Pham
,
    at least based on the current
IRPA

threshold.

[32]

Moreover,
    the appellants suggested approach may create difficulties for judges applying
    sentencing ranges. The immigration status of an offender, a highly
    individualized circumstance, is not embedded or reflected in the sentencing
    ranges for various offences that have developed in this province over time. As
    Wagner J. noted in the passage quoted above (in para. 26 of these reasons),
    immigration consequences of a given sentence are neither aggravating nor
    mitigating factors. As such, immigration consequences are unlike other
    individualized factors that are generally considered when applying sentencing
    ranges. Viewed in this light, immigration consequences might best be addressed
    separately, and only if necessary.

[33]

In
Lacasse
, the court discussed the nature of sentencing ranges. Writing
    for the majority, Wagner J. wrote the following, at paras. 57 and 58:

Sentencing ranges are nothing more than summaries of the
    minimum and maximum sentences imposed in the past, which serve in any given
    case as guides for the application of all the relevant principles and
    objectives. However, they should not be considered averages, let alone
    straightjackets, but should instead be seen as historical portraits for the use
    of sentencing judges, who must still exercise their discretion in each case

There will always be situations that call for a sentence
    outside a particular range: although ensuring parity in sentencing is itself a
    desirable objective, the fact that each crime is committed in unique
    circumstances by an offender with a unique profile cannot be disregarded. The
    determination of a just and appropriate sentence is a highly individualized
    exercise that goes beyond a purely mathematical equation. It involves a variety
    of facts that are difficult to define with precision. This is why it may happen
    that a sentence that, on itself face, falls outside a particular range, and
    that may never have been imposed in the past for a similar crime, is not
    demonstrably unfit. Once again, everything depends on the gravity of the
    offence, the offenders degree of responsibility and the specific
    circumstances.

[34]

Returning
    to the immigration context, in his earlier decision in
Pham
, Wagner J.
    warned (at para. 16) that the consideration of immigration consequences must
    not lead to a separate sentencing scheme with a
de facto
if not a
de
    jure
special range of sentencing options where deportation is a risk. The
    appellants approach risks doing just that.

[35]

Finally,
    I am not persuaded that the competing approaches to addressing immigration
    consequences will make any difference at the end of the day. What is important
    is that, whatever mode of analysis is utilized, sentencing judges give the
    issue serious consideration in determining a fit sentence.

[36]

Returning
    to the facts of this case, the trial judge did give serious consideration to
    the appellants immigration situation. He thoroughly considered the issue and,
    after anxious consideration, concluded that it would not be appropriate to
    impose a sentence of imprisonment that was less than six months. Indeed, he
    could find no jurisprudential support for such a lenient sentence in the
    circumstances of this case, nor could counsel on appeal point us to any
    authority. To have imposed a sentence of less than six months imprisonment would
    have involved reducing the sentence solely for the purpose of avoiding the
    impact of the
IRPA
, something that the court in
Pham
, para.
    15, held inappropriate. See also
R. v. Badhwar
, 2011 ONCA 266, 270
    C.C.C. (3d) 129, at paras. 42 to 45;

R. v. Freckleton
, 2016
    ONCA 130, 128 W.C.B. (2d) 434, at para. 2; and
R. v. Mohammed
,
2016 ONCA 678
, 132 W.C.B. (2d) 383, at para. 3. It would have
    resulted in a demonstrably unfit sentence for a significant sexual assault
    involving anal penetration.

G.

Conclusion

[37]

While
    I would grant leave to appeal sentence, I would dismiss the appeal.

Released:

SEP                                       G.T.
    Trotter J.A.

FEB 15 2017                          I agree K.M.
    Weiler J.A.

I agree
    S.E. Pepall J.A.





[1]

In his Reasons for Judgment, the trial judge said that the
    penetration lasted 20 to 35 seconds. In his Reasons for Sentence, he said it
    continued for 20 to 30 seconds.


