R. v. Najafov

R. v. Najafov Collection Decisions of the Court of Appeal Date 2016-05-09 Neutral citation 2016 ONCA 351 Docket numbers C60251 Judges Feldman, Kathryn N.; Simmons, Janet M.; Pepall, Sarah E. Subject Criminal Decision Content 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. 6. (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 7. (a) as soon as feasible, inform the victim of their right to make an application for the order; and 8. (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. Najafov, 2016 ONCA 351 DATE: 20160509 DOCKET: C60251 Feldman, Simmons and Pepall JJ.A. BETWEEN Her Majesty the Queen Respondent and Telman Najafov Appellant Telman Najafov, in person Erika Chozik, duty counsel Leslie Paine, for the respondent Heard and released orally: April 6, 2016 On appeal from the conviction entered on October 22, 2014 and the sentence imposed on March 6, 2015 by Justice Wailan Low of the Superior Court of Justice, sitting without a jury. ENDORSEMENT [1] The appellant was convicted of sexual assault and unlawful confinement and received a 32-month sentence less 15 days credit for pre-trial custody. He appeals from both his conviction and sentence. [2] We see no merit in any of his arguments. [3] The trial judge considered the evidence, applied the appropriate tests and found the appellant guilty. His complaints based on the state of the record are unfounded. We agree with the Crown’s submission that the Crown had a strong case that included the 911 call recording confirming the complainant’s evidence. Moreover, it was open to the trial judge to accept the complainant’s evidence on the key pad (found at pp. 53-54 of the transcript of the complainant’s evidence). We see no error in the trial judge’s findings of guilt. [4] As for the appellant’s sentence, in our view, 32 months was lenient given the serious nature of the sexual assault. Among other things, the complainant’s abduction and confinement were premeditated. [5] The appeal against conviction is dismissed. Leave to appeal sentence is granted, but the appeal from sentence is dismissed. “K. Feldman J.A.” “Janet Simmons J.A.” “S.E. Pepall J.A.”