



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    any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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 complainants 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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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

CITATION: R. v. Ismail, 2017 ONCA 597

DATE: 20170711

DOCKET: C63121

Weiler, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Abdikhalik Ismail

Appellant

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.


