W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. As relevant in this case, s. 486(3) and s.486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under s. 486(3), read:
486.(3) Subject to subsection (4), where an accused is charged with
(a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988,
- the presiding judge or justice may make an order directing that the identity of the complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.
(5) Every one who fails to comply with an order made pursuant to subsection (3) is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 442; 1974-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6.
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) - and - PAUL MARITAN (Appellant)
BEFORE:
CARTHY, MOLDAVER and FELDMAN JJ.A.
COUNSEL:
Ilan Neuman
for the appellant
Alex Hrybinsky
for the respondent
HEARD:
MAY 14, 2003
On appeal from conviction by Justice Robert N. Weekes of the Superior Court of Justice sitting with a jury on June 14, 2000 and sentence imposed on September 29, 2000.
A P P E A L B O O K E N D O R S E M E N T
2The charge on reasonable doubt was appropriate and the appellant concedes that the instruction was in accordance with R. v. Lifchus. Identification of the appellant as the man Mr. Smith said he saw in June (as opposed to the timing) was never in issue and the trial judge did not err in failing to caution the jury about the weaknesses of eye-witness identification evidence. With respect to the exhortation ground, the trial judge’s instructions were proper and there is no basis for thinking that the jury felt obliged to hurry up their verdict and arrive at it before a 7:30 p.m. deadline. Accordingly, the appeal from conviction is dismissed.
3With respect to sentence, we think the trial judge was entitled to give less weight to the character evidence filed on behalf of the appellant given that the appellant groomed the young complainant and was in a quasi-trust position towards her. Having regard to the gravity and seriousness of the crime, we are not persuaded that the trial judge erred in refusing to impose a conditional sentence. The sentence imposed was fit and we see no basis for disturbing it. The appeal from conviction and sentence is dismissed.