Sentencing judge ignored collateral consequences regarding trafficker's immigration status: ONCA

Mansaray was abducted as a child soldier in Sierra Leone before escaping and migrating to Canada

Sentencing judge ignored collateral consequences regarding trafficker's immigration status: ONCA
Osgoode Hall

Sentencing must consider mental health issues, trauma, and the potential side effects of imprisonment, the Ontario Court of Appeal stated in a recent judgment. The appeal court set aside a trial judge’s custodial penalty and imposed a conditional sentence, finding that the lower court judge erred in relying on the appellant’s defence conduct as an aggravating factor and not considering the effect of a jail sentence on his immigration status.

“Sentencing is a very individualized process,” says Crown Attorney Erin Carley. “It’s always very fact specific and in this case, the court found the circumstances were very sympathetic.”

In R. v. Mansaray, the court set a conditional sentence of two years on the conditions outlined in paragraph 14 of the decision and upheld the trial judge’s probation and ancillary orders. “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),” the court wrote. “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.”

When Mansaray was approximately ten years old, he was abducted and held hostage as a child soldier in the Revolutionary United Front in Sierra Leone before escaping and migrating to Canada to live with his father. “As a child soldier, he was required to kill and torture. Discipline was imposed on him through beatings.”

The trial judge sentenced Mansaray to two years in prison and two years on probation after he was found guilty of possessing 186 grams of cocaine for trafficking, proceeds of crime not exceeding $5,000, and breach of probation in 2019. 

Although a psychiatrist, Dr. Chaimowitz, prepared a report based on his findings and conversations with Mansaray under the Mental Health Act, and the judge accepted that it was impossible to imagine the horrors he experienced as a child and that the assessment confirms that the experience continues to impact him, the judge was not explicitly going to consider immigration consequences.

Mansaray appealed his sentence because the trial judge failed to account for potential collateral immigration consequences and considered that he lied during his trial as an aggravating factor. Duty counsel, Erin Dann, argued that the court established that how an accused person presents their defence should not be treated as an aggravating factor, citing R. v. Kozy (1990).

Dann also argued that in not considering that the appellant was on bail for a significant period without any further offence and rejecting a conditional sentence, the trial judge erred in assessing the potential risk to the community.

Dann presented two letters as fresh evidence in the appeal. A letter from a social worker with the Ministry of the Solicitor General outlining the steps Mansaray has taken, and the progress made over the past ten months at the Niagara detention center and his acceptance into the Ottawa Booth Center Addiction Services Programs, a residential treatment program staffed 24 hours a day, including counselling for anger management and emotional health.

“According to the social worker, the appellant has been participating in ongoing counselling and has demonstrated significant insight into his challenges,” the court wrote. “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.”

Carley conceded the first ground of appeal but argued that the error was inconsequential because the sentence imposed by the trial judge was fit. The court set aside the custodial sentence and imposed a conditional sentence of imprisonment on the terms agreed by the parties and effective as of the date of the initial sentence.

Carley says s. 718 in the Criminal Code sets out guidelines that every judge determining an appropriate and proper sentence is supposed to follow, and those factors need to be followed in every instance, so offenders are convicted according to their circumstances.

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