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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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
DATE 20160912
MacPherson, Pepall and Pardu JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Magabi Lashury Suleiman
Appellant
Magabi Lashury Suleiman, acting in person
David Smith, duty counsel
Molly Flanagan, for the respondent
Heard: September 9, 2016
On appeal from the conviction entered on September 17, 2014 and the sentence imposed on October 30, 2014 by Justice Maria Linhares de Sousa of the Superior Court of Justice, sitting without a jury.
APPEAL BOOK ENDORSEMENT
1The appellant, with the assistance of duty counsel, advances three grounds of appeal on his conviction. Two relate to only a single count on a multi-count indictment and one relates to several counts.
2The appellant contends that the trial judge made improper use of a prior statement by the complainant to a nurse. We disagree. The brief reference to this statement was simply part of the narrative of events and was not used to bolster the complainant’s credibility.
3The appellant submits that the trial judge improperly relied on similar fact evidence relating to cell phones in her reasons.
4We are not persuaded by this submission. The appellant’s seizure of cell phones from five complainants was an integral part of the offences.
5The appellant contends that the trial judge engaged in inconsistent reasoning with respect to count 8 in the indictment. We disagree. The words “not persuaded by” in paragraph 261 of her reasons refer only to confinement in the appellant’s automobile, not to confinement in his apartment.
6The appellant contends that his global sentence of nine years’ imprisonment is excessive. We do not accept this submission. The serious nature of the offences, the number of victims, and the many aggravating factors justify the global sentence. We note that both trial counsel agreed that the appropriate sentencing range was 8 to 10 years.
7The appellant submits, and the Crown accepts, that the actual wording employed by the sentencing judge in her reasons did not give effect to her stated intention of giving the appellant credit for pre-sentence custody on a 1.5:1 basis.
8We accept the parties’ joint submission on this issue. The parties agree on the math that will correct this error.
9The conviction appeal is dismissed. The sentence appeal is allowed. The appellant is given credit for 1541 days of pre-sentence custody, which reduces his sentence to an additional 1744 days to serve.