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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

486.4(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.

486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

486.6(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: 2019-03-05

Docket: C63412

Panel: Doherty, Benotto and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

Shudeep Kazi Appellant

Counsel: Michael Bryant, for the appellant Andrew Hotke, for the respondent

Heard: February 26, 2019

On appeal from the conviction entered on November 30, 2016 and the sentence imposed on March 1, 2017 by Justice D. McLeod of the Ontario Court of Justice.

Reasons for Decision

Conviction

[1] The appellant was convicted of luring a child for sexual purposes and sentenced to nine months in custody. He appeals the conviction, the trial judge's dismissal of his 11(b) application and the sentence.

[2] The appellant submits that all three of the trial judge's decisions are defective. He argues that – in addition to errors of law - they are tainted by a series of missteps by the trial judge followed by unsatisfactory explanations which in turn led to inordinate delays between the hearings and the decision.

[3] When he rendered his oral reasons for conviction, the trial judge explained that his reasons were "somewhat fragmented" because he had encountered computer issues and was essentially going from rough notes. The appellant says that the resulting reasons were fragmented and not capable of appellate review.

[4] We do not agree.

[5] There was one issue at trial: did the appellant send the impugned messages to the complainant. The complainant's credibility was not in issue. It was acknowledged that the messages were received. The content fully supported the charges. The trial judge explained why he was satisfied beyond a reasonable doubt that the appellant had sent the messages. That explanation included a detailed and reasoned rejection of the appellant's denial. In these circumstances, the reasons are satisfactory.

11(b) Application

[6] The 11(b) application was argued on October 20, 2017. The trial judge dismissed the application without reasons on January 5, 2018. In May 2018 counsel were asked to provide replacement factums to the court as the originals had been inadvertently destroyed. The written reasons were sent to the parties on July 6, 2018. The appellant submits that the request for the factums coupled with eight month delay between argument and release of reasons compromise the integrity of the reasoning process. He argues that the reasons reflect a justification for his earlier decision, not a reasoned analysis.

[7] We do not agree. The trial judge meticulously charted the time from charge to conviction and we see no basis to infer that the reasons were compromised because of the delay.

[8] The appellant further submits that the trial judge erred by dismissing the application.

[9] Again, we do not agree.

[10] The information was sworn on January 9, 2015. The verdict was rendered on November 30, 2016. Six months before the verdict, Jordan was released. The trial judge determined that the 23 months from charge to verdict should be reduced by 10 months to 13 months as a result of defence delay caused by adjournments and unavailability. We see no error in his analysis, which resulted in a net delay to verdict of 13 months. This is 5 months under the Jordan ceiling.

[11] The post-verdict delay from November 30, 2016 to the sentencing decision on January 15, 2018 is a period of 13 months. There were four months attributable to defence delay arising from the 11(b) application leaving a net delay of nine months. Even if the Jordan ceiling is applied to the entire time from charge to sentence, the case is only four months over the presumptive ceiling. However, the first 17 months of the pre-verdict time was when the parties were operating under the previous framework. Applying the transitional provisions in context, the time to sentence does not markedly exceed what was reasonably required.

Sentence

[12] We agree with the appellant that the sentencing reasons are problematic. The trial judge orally imposed a nine months' sentence; the reasons – six months later - imposed 10 months. The trial judge gave no consideration to the mitigating factor of strict house arrest which were bail conditions for a considerable time. Although he relied on Morrisson which sentenced the offender to 75 days, he did not distinguish it. That said, we agree with the trial judge's comments that the appellant, in a position of trust with the complainant, was in a position to "fast track" his requests of a sexual nature. This was an aggravating factor.

[13] The Crown fairly concedes that this court could approach the sentence de novo. In all the circumstances and as a matter of fairness we reduce the sentence to six months.

Summary

[14] The conviction appeal is dismissed. The sentence appeal is allowed and the sentence is reduced to six months.

"Doherty J.A."

"M.L. Benotto J.A."

"Grant Huscroft J.A."