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:
An order restricting publication in this proceeding under ss. 486.4(1), (2) or (3) or 486.5(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of: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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step‑daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(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 complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, 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.
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
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.
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) – and – RAYMOND PIKE (Appellant)
BEFORE: MOLDAVER, GILLESE AND LAFORME JJ.A.
COUNSEL: Irwin Koziebrocki for the appellant Nadia Thomas for the respondent
HEARD & ENDORSED: October 24, 2006
On appeal from conviction by Justice Kofi Barnes of the Ontario Court of Justice dated June 20, 2005 and sentence imposed September 13, 2005.
A P P E A L B O O K E N D O R S E M E N T
1The trial judge gave thorough and comprehensive reasons for conviction. He was obviously alive to the frailties in the complainant’s evidence and in particular, the inconsistencies in her testimony and the fact that she had earlier made a false allegation against the appellant. In the case of some of the inconsistencies, the trial judge put them down to the young age of the complainant and her inability to recall the types of details that adults might be expected to remember. That was a finding that the trial judge was entitled to make and we see no basis for interfering with it.
2That said, the trial judge was still sufficiently concerned about the evidence of the complainant that he felt the need to look for confirmatory evidence before relying upon her testimony to convict. In that regard, the trial judge set out five items of evidence which he considered to be confirmatory. We agree that item (1) on the list i.e. that the complainant did not “back down this time” unlike she did with respect to the first set of allegations she had earlier made against the appellant, was not capable of being confirmatory.
3We disagree with the appellant as to the other four items. In our view, all of them served to restore the trial judge’s faith in the credibility and reliability of the complainant’s testimony and particularly those where the appellant changed his initial version to conform with her recollection as to what had occurred. In addition, there was other evidence which the trial judge did not mention that in our view, he could have relied upon as confirmatory. One example is the appellant’s attempt to mislead the police by advising them that he had disposed of the vibrator, when in fact, he had hidden it in a suitcase that the police located in one of his closets.
4In the end, to the extent that the trial judge took into account one item of evidence as “confirmatory” that he should not have, the error in our view was harmless. Had he not made the error, the verdict would necessarily have been the same. Accordingly, we would dismiss the appeal from conviction.
5With respect to sentence, without minimizing the gravity and seriousness of the appellant’s crimes, we feel that having regard to the nature of the abuse i.e. brief foundling of the complaint’s vagina on two occasions that were proximate in time and the appellant’s otherwise unblemished background, the seventeen month sentence exceeded the range of sentences that this court has imposed in like circumstances. Accordingly, we would reduce the custodial portion of the sentence from seventeen months to twelve months. We would not otherwise interfere with the sentence imposed by the trial judge. On the s. 161 order (20 years) which the appellant questioned, we note that the appellant has the right to apply to have it varied and we are not persuaded that the trial judge erred in exercising his discretion as he did.
6Accordingly, leave to appeal sentence is granted and the sentence is varied to give effect to these reasons.