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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2017-07-11

Docket: C63121

Panel: Weiler, Hourigan and Pardu JJ.A.

Between

Her Majesty the Queen Respondent

and

Abdikhalik Ismail Appellant

Counsel:

• Erika Chozik, for the appellant
• Michael Fawcett, for the respondent

Heard and released orally: July 7, 2017

On appeal from: the sentence imposed on July 18, 2016 by Justice George S. Gage of the Ontario Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant received an effective sentence of twelve months plus three years probation for arson. He seeks leave to appeal and, if leave is granted, appeals the custodial portion of his sentence.

[2] It is well established that a sentencing judge is required to take into account any collateral immigration consequences in determining a fair and proportionate sentence.

[3] At the time of sentencing no one, including the appellant himself, was aware that he was not a Canadian citizen. Accordingly, it falls this court to impose a fit sentence taking the personal circumstances of the appellant into account. The offence to which the appellant pled guilty was setting a fire to a blanket in the group home where he was residing. There was minimal property damage and the group home has accepted him back and he has made great progress.

[4] A sentence that would see this appellant – a young man of 19 at the time with special needs and his whole family and system of supports in Canada – deported to a refugee camp in a country where he has no connection and no supports is in the circumstances unfit and warrants appellate intervention.

[5] A sentence of six months less a day is a fit sentence having regard to the principles of sentencing, the moral blameworthiness of the offender and the seriousness of the offence. Accordingly for these reasons leave to appeal sentence is granted, the appeal is allowed, the sentence imposed is set aside and a sentence of six months less a day imposed. The appellant has already served that sentence.

K.M. Weiler J.A.

C.W. Hourigan J.A.

G. Pardu J.A.