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), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 279.01, 279.02, 279.03, 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.
(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).
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
Rosenberg, Goudge and Armstrong JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Antonio Raco
Appellant
Frank Miller, for the appellant
Dena Bonnet, for the respondent
Heard and released orally: January 19, 2011
On appeal from the conviction entered by Justice S. Rogin of the Superior Court of Justice on October 21, 2009 and the sentence imposed by Justice Rogin on February 8, 2010.
ENDORSEMENT
Overview
1While the appellant raised two grounds of appeal, the only issue pursued in oral argument was whether the trial judge misused the appellant’s failure to testify contrary to the holding of the Supreme Court of Canada in R. v. Noble, [1994] 1 S.C.R. 874.
Analysis
2The trial judge stated that he was entitled to comment on the fact that the accused did not testify but “always bearing in mind the heavy onus on the Crown to prove each count beyond a reasonable doubt”. He also recognized that he could not use the accused’s failure to testify to transform what might be a weak Crown case into a strong one.
3If the trial judge used the fact that the appellant did not testify as evidence to bolster the Crown’s case, this would have been an error. However, we are not persuaded that he did so. Rather, we think he simply used the fact the appellant did not testify as meaning that there was no other explanation for what was otherwise an overwhelming case in respect of all the counts except count number 2 where the trial judge found that, while the offence probably occurred, he was not satisfied beyond a reasonable doubt. Nor did he use the language of an adverse inference that was condemned in Noble.
4That said, we emphasize that it is very dangerous for a trial judge to refer to the failure to testify except in the precise way referred to by Sopinka J. in Noble at paragraphs 77 and 82.
Disposition
5Accordingly, the appeal from conviction is dismissed. The appeal from sentence is dismissed as abandoned.
“M. Rosenberg J.A.”
“S.T. Goudge J.A.”
“Robert P. Armstrong J.A.”
