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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20210614 Docket: C66065

Benotto, Trotter and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

C.K. Appellant

Counsel: C.K., in person Richard Litkowski, duty counsel Manasvin Goswami, for the respondent

Heard: June 9, 2021 by video conference

On appeal from the sentence imposed on November 2, 2018 by Justice J. Wright of the Ontario Court of Justice.

Reasons for Decision

[1] C.K. pleaded guilty to what the trial judge described as a brutal and savage beating of a female who had come to his home to use drugs. He was sentenced to six years to be served concurrently on convictions for assault, assault causing bodily harm, sexual assault and unlawful confinement. He appeals the sentence and raises two issues.

[2] First, he submits that the trial judge miscalculated the pre-sentence custody and consequently, he did not receive the proper credit for time served. C.K. was in pre-sentence custody from September 12, 2016 until November 2, 2018. We have calculated that amounts to 781 days. He was given credit for 782 days at 1:1.5. We see no error in the calculation.

[3] Second, C.K. submits that his sentence should be either stayed or reduced because of the ten-month delay from conviction to sentence. He relies on this court’s decision in R. v. Charley 2019 ONCA 726 which set a presumptive ceiling of a five-month delay. We note at the outset that Charley post-dated the sentencing so that the transitional exceptional circumstances set out in a typical Jordan analysis would apply. Here, the guilty plea was February 1, 2018. Following the plea, the appellant brought an application to strike the plea. That application was dismissed on May 3, 2018. He was sentenced on November 2, 2018. Therefore, three months of the ten-month delay between conviction and sentence was attributable to the appellant’s application. The remaining delay related to the fact that the appellant fired his counsel and obtained the Gladue Report. The total delay in the circumstances is not unreasonable.

[4] Leave to appeal sentence is allowed, but the sentence appeal is dismissed.

“M.L. Benotto J.A.”

“Gary Trotter J.A.”

“I.V.B. Nordheimer J.A.”