



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. Kazi, 2019 ONCA 167

DATE: 20190305

DOCKET: C63412

Doherty, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shudeep Kazi

Appellant

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

[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
    judges dismissal of his 11(b) application and the sentence.

[2]

The appellant submits that all three of the trial judges 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.

Conviction

[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 complainants 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 appellants 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 judges 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.


