



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    that could identify the victim or a witness shall not be published in any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 complainant’s 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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.

(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

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

(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. Zagrodskyi, 2018 ONCA 34

DATE: 20180117

DOCKET: C62199

Laskin, Trotter and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Konstiantyn Zagrodskyi

Appellant

Matthew Gourlay and Reem Zaia, for the appellant

Nancy Dennison, for the respondent

Heard: January 9, 2018

On appeal from the
    conviction entered on January 15, 2016 and the sentence imposed on May 4, 2016 by
    Justice Paul Currie of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant Konstiantyn Zagrodskyi was charged with domestic abuse of
    his former wife on three separate occasions: August 27, October 28 and October
    31, 2010. After a trial at which the appellant testified and denied that he had
    abused the complainant, the trial judge convicted him on the August 27 and
    October 31 incidents and acquitted him on the October 28 incident.

[2]

On the August 27 incident the trial judge found the appellant guilty of
    assault causing bodily harm and sexual assault. He sentenced him to nine months
    for the assault causing bodily harm conviction and three months concurrent for
    the sexual assault conviction. On the October 31 incident the trial judge
    convicted the appellant of sexual assault and sentenced him to six months
    consecutive to the sentences for the August 27 incident.

[3]

The appellant appeals both his convictions and his sentences. On his
    sentence appeal he seeks leave to introduce fresh evidence showing the
    immigration consequences of his sentence, consequences the trial judge did not
    consider in imposing a global sentence of 15 months.

A.

Conviction appeal

[4]

On his conviction appeal the appellants main submission is that the
    trial judges reasons were inadequate because he failed to explain why the
    appellants denial of abuse was disbelieved. We agree with this submission for
    the October 31 incident but not for the August 27 incident.

[5]

The August 27 incident occurred in the context of the deteriorating
    relationship between the appellant and his former wife. The catalyst for the
    incident was a conversation between the complainant and her mother, which the
    appellant overheard. In the conversation the complainant said that while on
    vacation a young man had made overtures to her and kissed her. Having overheard
    the conversation, the appellant punched a hole in the wall, threw the
    complainants laptop to the ground and ripped off her clothes.

[6]

The complainant testified that the appellant then slapped her numerous
    times with his open hand, and that his abuse of her continued throughout the
    night and into the next morning. The appellant admitted that he slapped the
    complainant a couple of times. He also admitted that he ripped off her clothes
    but claimed that he did so to show how easily she could be raped by other men. He
    denied the balance of her allegations. The appellant also conceded that he was
    upset. But he maintained he was not angry, by which he meant physically
    aggressive.

[7]

The trial judges reasons for conviction are brief but they are
    adequate. He found the complainants evidence about what occurred on August 27
    compelling, and gave brief reasons for his finding. He rejected the
    appellants evidence that he was not angry, and found that the appellants
    version of what occurred on August 27 was not in accord with common sense or
    life experience. He concluded that on all the evidence, including photographs
    of the complainants injuries, taken by her, that the guilt of the appellant
    had been proved beyond a reasonable doubt.

[8]

The appellants main complaint about the inadequacy of the reasons
    focuses on the trial judges rejection of the appellants claim he was not
    angry. In rejecting the appellants claim, the trial judge did not explain the
    distinction the appellant made in his testimony (given through an interpreter)
    between being upset, that is despondent after hearing that his former wife
    may have been unfaithful, and being angry, that is physically aggressive.
    Although it might have been preferable had the trial judge explored this
    distinction, his rejection of the appellants claim he was not angry was
    sufficient. We are satisfied that the appellant knew why his denial of abuse
    was disbelieved. We therefore dismiss the conviction appeal on the August 27
    incident.

[9]

By contrast the trial judges reasons on the October 31 incident are
    inadequate. The parties agree that on October 31 they had sex: the complainant
    gave the appellant a hand job. The underlying issue was whether the sex was
    consensual. The appellant said it was; he was trying to repair his relationship
    with his former wife. She said it was not; she did not want to have sex with
    him and only agreed to do so to calm him down.

[10]

In
    convicting the appellant on this count, the trial judge simply said:

On that count and count two, the
    October 31
st
allegation, I am satisfied on all the evidence, beyond
    a reasonable doubt, that on that occasion Mr. Zagrodskyi did commit a sexual
    assault on O.H., and that he did commit an assault of O.H. in the course of
    that October 31
st
event as well.

[11]

These
    reasons, in substance, amount to no reasons at all. They do not tell the
    parties why the appellants evidence was disbelieved. Nor do they permit this
    court to meaningfully review the basis for the appellants conviction. Thus his
    conviction for sexual assault on October 31 is set aside and a new trial is
    ordered on that count.

B.

The sentence appeal

[12]

The
    trial judge did not consider the immigration consequences of the sentence he
    imposed. In fairness to him, no party asked that he do so.

[13]

Taking
    into account these immigration consequences, we adjust the sentences for the
    August 27 incident as follows:

·

Six months less ten days inclusive of pre-sentence custody for
    the conviction for assault causing bodily harm; and,

·

Three months consecutive instead of concurrent for the sexual
    assault conviction.

[14]

In
    essence we have reduced the sentence for the assault causing bodily harm
    conviction by three months and converted the three months sentence for sexual
    assault from a concurrent sentence to a consecutive sentence.

[15]

We
    think that justice is fairly served by imposing these sentences. Functionally
    they preserve the overall length of sentence imposed by the trial judge for the
    August 27 incident, nine months. These adjusted sentences will permit the
    appellant to appeal his deportation order. As the Supreme Court of Canada and
    our court have said, the risk of deportation is a factor to be taken into
    account in sentencing, and it was not taken into account by the trial judge.

[16]

We
    are mindful that we cannot impose an artificial sentence to circumvent the
    scheme of the
Immigration and Refugee Protection Act
. But in our view
    these sentences do not do so, especially as there is a rational basis for
    imposing consecutive sentences, and we have maintained the trial judges
    overall sentence of 9 months.

[17]

As
    well, we have taken into account that the appellant is a compelling candidate
    for an adjustment of his sentence. The incidents occurred over eight years ago.
    Since then the appellant has established a relationship with another woman to
    whom he is engaged to be married, and with whom he has bought a house. He is
    close to her family. He has a full-time job and the support of his employer.
    And he has had no further troubles with the law.

C.

Conclusion

[18]

The
    conviction for sexual assault on October 31, 2010 is set aside and a new trial
    is ordered on that count. Otherwise the conviction appeal is dismissed.

[19]

Leave
    to appeal sentence is granted, and the sentence appeal is allowed. The
    sentences imposed on count three (assault causing bodily harm on August 27,
    2010) and count four (sexual assault on August 27, 2010) are adjusted as
    follows:

·

Assault causing bodily harm: reduced from nine months to six
    months less 10 days, inclusive of pre-sentence custody.

·

Sexual assault: changed from three months concurrent to three
    months consecutive.

John Laskin J.A.

G.T. Trotter J.A.

Fairburn J.A.


