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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

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

[2] (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. Ogbamichael, 2016 ONCA 65

DATE: 20160122

DOCKET: C58576

Feldman, Hourigan and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tekle Ogbamichael

Appellant

Tekle Ogbamichael, acting in person

Katie Doherty, for the respondent

Heard and released orally: January 12, 2016

On appeal from the conviction entered on March 3, 2014 and sentence imposed by Justice Gary Trotter of the Superior Court of Justice, dated March 21, 2014 sitting without a jury.

ENDORSEMENT

[3] The appellant was convicted of one count of sexual assault and one count of breach of probation. He was sentenced to 18 months’ imprisonment on the sexual assault conviction and 12 months’ imprisonment on the breach of probation conviction, with three years’ probation to follow. He appeals his convictions and seeks leave to appeal sentence.

[4] The appellant submits that the trial judge erred in convicting on a very weak identification evidence. We disagree. In very thorough and compelling reasons, the trial judge carefully considered the identification evidence. We see no error in that analysis and no basis for appellate intervention.

[5] With respect to the sentence appeal, again we see no error in principle or in the sentence imposed. The appellant has a lengthy history of convictions for similar offences. The trial judge found that previous custodial dispositions have failed to curb his behaviour, both in terms of committing sexual offences and in failing to comply with court orders, including that he not ride on TTC vehicles.

[6] In these circumstances, the trial judge did not breach the jump principle in imposing the sentence appealed from and there is no basis to interfere with the imposition of the consecutive sentences. Given the appellant’s history of committing sexual offences on public transit, we also see no error in the imposition of a prohibition on his use of public transit as part of his probation order.

[7] The conviction appeal is dismissed. Leave to appeal sentence is granted, but the sentence appeal is dismissed.

“K. Feldman J.A.”

“C.W. Hourigan J.A.”

“L.B. Roberts J.A.”